PEOPLE v. COLEMAN (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of robbery in the third degree and assault in the second degree and dismissing counts one and three of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the second degree (Penal Law § 160.10 [2] [a]), robbery in the third degree (§ 160.05), and assault in the second degree (§ 120.05 [6]). Preliminarily, as defendant contends and the People correctly concede, robbery in the third degree is a lesser included offense of robbery in the second degree (see People v. Best, 120 A.D.3d 707, 709, 991 N.Y.S.2d 441 [2d Dept. 2014], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015]). Moreover, although not raised by the parties, we note that assault in the second degree under section 120.05 (6) is a lesser included offense of robbery in the second degree under section 160.10 (2) (a) (see People v. Perez, 93 A.D.3d 1032, 1039, 942 N.Y.S.2d 227 [3d Dept. 2012], lv denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012]; People v. Lucas, 291 A.D.2d 890, 890, 737 N.Y.S.2d 732 [4th Dept. 2002]). We therefore modify the judgment by reversing those parts convicting defendant of robbery in the third degree and assault in the second degree and dismissing counts one and three of the indictment (see Best, 120 A.D.3d at 709, 991 N.Y.S.2d 441; Lucas, 291 A.D.2d at 890, 737 N.Y.S.2d 732).

In light of our decision, we need not address defendant's challenges to the weight and sufficiency of the evidence with respect to counts one and three. Defendant's challenges to the legal sufficiency of the evidence supporting his conviction of robbery in the second degree are unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]). Moreover, viewing the evidence in light of the elements of robbery in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict finding defendant guilty of that crime is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Finally, the sentence is not unduly harsh or severe.