PEOPLE v. RAMOS (2018)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered December 3, 2014, convicting defendant, after a jury trial, of robbery in the second degree and resisting arrest, and sentencing him, as a second violent felony offender, to an aggregate term of nine years, unanimously modified, on the law, to the extent of reducing the second degree robbery conviction to third degree robbery, remanding the matter for resentencing on that conviction, and otherwise affirmed.

We reject defendant's argument that the verdict was not based on legally sufficient evidence and was against the weight of the evidence because the evidence did demonstrate an intent to permanently deprive the victim of her property.  Defendant's conduct, including his flight with the victim's purse and necklace, supported the inference that, at the time of the robbery, he intended to permanently deprive the victim of her property (see Penal Law § 155.00[3];  People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74 [1st Dept. 1972], affd 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319 [1972] ), notwithstanding that the incident involved domestic violence (see People v. Ramos, 12 A.D.3d 316, 317, 786 N.Y.S.2d 424 [1st Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 10, 825 N.E.2d 142 [2005] ).

However, we agree with the defendant that the evidence was insufficient to establish “substantial pain” beyond a reasonable doubt to sustain his conviction of robbery in the second degree Penal Law § 160.10[2][a] ).  The People's evidence, presented through photographs and police testimony, was insufficient to establish that plaintiff suffered more than “petty slaps” and, therefore, failed to establish “substantial pain” beyond a reasonable doubt (see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ).

Defendant did not preserve any of his challenges to the prosecutor's summation, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  To the extent that portions of the summation could be viewed as containing a misstatement of law, any prejudice was avoided by the court's charge, which the jury is presumed to have followed.