PEOPLE v. ALVAREZ (2023)

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered November 8, 2018, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of nine years, unanimously affirmed.

The court providently exercised its discretion in declining defendant's request for a specific instruction that force used solely to escape does not establish robbery.  The court's standard instructions on robbery, with particular reference to the definition of forcible stealing set forth in Penal Law § 160.00, adequately conveyed that principle.  Furthermore, the evidence clearly established that defendant lost possession of stolen merchandise only after he had already threatened store employees with a box cutter in an effort to depart with the merchandise (see People v. Gordon, 23 N.Y.3d 643, 649–651, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014]), and there was no reasonable view of the evidence to the contrary (see People v. Carey, 194 A.D.3d 553, 554, 143 N.Y.S.3d 883 [1st Dept. 2021], lv denied 37 N.Y.3d 971, 150 N.Y.S.3d 688, 172 N.E.3d 801 [2021]).

The court provided a meaningful response to a jury note asking why store surveillance videotapes from additional camera angles were not presented at trial.  The court's caution against speculation was balanced by language that the jurors should base their verdict on the evidence or lack of evidence.  The instruction did not undermine defense arguments or preclude the drawing of reasonable inferences (see e.g. People v. Jiovani, 258 A.D.2d 277, 685 N.Y.S.2d 66 [1st Dept. 1999], lv denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999];  compare People v. Williams, 5 N.Y.3d 732, 734–735, 800 N.Y.S.2d 360, 833 N.E.2d 695 [2005]).

In any event, we find that any error regarding either of the above-discussed charging issues was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975])).

We perceive no basis for reducing the sentence.