PEOPLE v. KIMBROUGH (2018)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 23, 2015, convicting defendant, after a nonjury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  In this robbery of a store, the evidence amply supported a finding that the testifying employee perceived what appeared to be a firearm when defendant placed his hand under his shirt at his waist and threatened to shoot everyone in the store (see People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752 [1983] ).  The record fails to support defendant's assertion that, before any property was taken, the employee “realized” that defendant did not have a firearm.  Instead, the employee merely testified that during the incident there came a time when he became unsure whether defendant actually had a firearm.  However, a victim need not be certain that a robber was armed to satisfy the display element (see People v. Brown, 119 A.D.3d 953, 954, 989 N.Y.S.2d 866 [2d Dept. 2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015];  People v. Bynum, 125 A.D.2d 207, 209, 509 N.Y.S.2d 321 [1st Dept. 1986], affd 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4 [1987] ).  Moreover, it can be reasonably inferred from the evidence that even after he developed this uncertainty, the employee was still in fear of possibly being shot at the time defendant stole money from the cash register.

Defendant did not preserve his additional argument regarding an alleged variance between the indictment and the trial evidence regarding the identity of the person actually robbed, and we decline to review it in the interest of justice.  As an alternative holding, we find it unavailing.