PEOPLE v. TIMMONS (2008)

 Defendant appeals from a judgment convicting him, following a nonjury trial, of robbery in the second degree (Penal Law § 160.10 [2][b] ).  Defendant failed to move for a trial order of dismissal and thus failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence based on the People's failure to establish that he displayed what appeared to be a firearm (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   According to the testimony of a bank employee, defendant pointed a gun at the bank tellers and yelled that he would “kill everybody” if the tellers did not give him the money.   We thus conclude that the People established that defendant displayed what appeared to the bank employee to be a firearm (see § 160.10[2][b];  People v. Giordano, 296 A.D.2d 714, 716, 745 N.Y.S.2d 598, lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740).   Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: