PEOPLE v. AKOMAH (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered February 10, 2006, convicting him of robbery in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.   Justice Belen has been substituted for Justice Chambers (see 22 NYCRR 670.1[c] ).

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in denying his request to submit the lesser-included offense of robbery in the third degree to the jury.   However, the defendant's conduct, as perceived by the complainant, was the display of a gun within the meaning of Penal Law § 160.10(2).   Thus, a reasonable view of the evidence would not support the conclusion that the crime occurred without the display of a gun (see People v. Cooper, 294 A.D.2d 592, 744 N.Y.S.2d 423;  People v. Ruiz, 220 A.D.2d 466, 631 N.Y.S.2d 779;  People v. Maynard, 211 A.D.2d 505, 621 N.Y.S.2d 557;  People v. Mays, 178 A.D.2d 557, 577 N.Y.S.2d 647).   Accordingly, the defendant's request for a charge on the lesser-included offense of robbery in the third degree was properly denied.

Moreover, the trial court properly refused to charge the non-inclusory concurrent count of grand larceny in the fourth degree (see CPL 300.40[3] [a];  People v. Leon, 7 N.Y.3d 109, 113-114, 817 N.Y.S.2d 619, 850 N.E.2d 666).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).