PEOPLE v. MITCHELL (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered January 24, 2006, convicting him of robbery in the first degree (two counts), robbery in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant allegedly committed two robberies in a single afternoon on October 29, 2002.   At trial, the complainant Therese McCabe testified that the defendant had entered the office of an automotive repair shop in Queens where she worked as a secretary and bookkeeper.   The defendant demanded money while using a one-inch straight edge razor to clean his fingernails.   McCabe gave the defendant $40, and he fled.   The complainant Patrick Wright testified that approximately two hours later the defendant entered a furniture store where Wright worked.   The defendant lured Wright outside on the pretense of discussing a furniture purchase with his disabled wife.   Once outside, the defendant demanded money and threatened to “ ‘blow [Wright's] head off’ ” while “push[ing] his hand” in the pocket of his jacket.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant threatened the immediate use of a dangerous instrument while robbing McCabe (see Penal Law § 160.15[3];  People v. Urena, 46 A.D.3d 714, 848 N.Y.S.2d 234;  People v. Boisseau, 33 A.D.3d 568, 824 N.Y.S.2d 17;  People v. Thompson, 273 A.D.2d 153, 710 N.Y.S.2d 333;  People v. Stevens, 237 A.D.2d 207, 208, 655 N.Y.S.2d 932).   In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt on the first count of robbery in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The prosecution also presented legally sufficient evidence that the defendant displayed an object that appeared to be a firearm while robbing Wright (see Penal Law § 160.15[4];  People v. Lopez, 73 N.Y.2d 214, 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328;  People v. Barrett, 247 A.D.2d 626, 626-627, 669 N.Y.S.2d 244;  People v. Ruiz, 216 A.D.2d 63, 63-64, 628 N.Y.S.2d 80;  People v. Butts, 181 A.D.2d 432, 433, 580 N.Y.S.2d 758) and, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the jury's verdict of guilt on the second count of robbery in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).   Moreover, the Supreme Court did not err in denying the defendant's request to charge robbery in the third degree (see Penal Law § 160.05) and petit larceny (see Penal Law § 155.25) as lesser-included offenses in connection with the robbery of Wright, since there was no reasonable view of the evidence by which the jury could have accepted part of Wright's testimony while rejecting the remainder of his testimony (see CPL 300.50[1];  People v. Blim, 63 N.Y.2d 718, 720-721, 480 N.Y.S.2d 192, 469 N.E.2d 513;  People v. Scarborough, 49 N.Y.2d 364, 373-374, 426 N.Y.S.2d 224, 402 N.E.2d 1127;  People v. Flood, 159 A.D.2d 217, 552 N.Y.S.2d 21).

The prosecution presented legally sufficient evidence that Wright suffered physical injury, an element of the charged offenses of robbery in the second degree and assault in the second degree (see Penal Law §§ 160.10[2], 120.05[6];  People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039;  People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165;  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951;  People v. Ricco, 11 A.D.3d 343, 344, 784 N.Y.S.2d 28;   People v. Branch, 306 A.D.2d 537, 538, 762 N.Y.S.2d 418).   Further, the jury's verdict as to those counts was not contrary to the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).   However, as the defendant contends, and the People correctly concede, the defendant's conviction of assault in the second degree under Penal Law § 120.05(6) must be vacated, and that count of the indictment dismissed, as the assault in the second degree count is an inclusory concurrent count of robbery in the second degree under Penal Law § 160.10(2)(a) (see CPL 300.30[4], 300.40[3][b];  People v. Leal, 38 A.D.3d 917, 918, 831 N.Y.S.2d 327;   People v. Tucker, 221 A.D.2d 670, 634 N.Y.S.2d 218).

The defendant's contention that the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is unpreserved for appellate review (see People v. Smith, 238 A.D.2d 451, 452, 656 N.Y.S.2d 348) and, in any event, is without merit (see People v. Leon, 10 N.Y.3d 122, 126, 855 N.Y.S.2d 38, 884 N.E.2d 1037;  People v. Thomas, 47 A.D.3d 850, 851, 850 N.Y.S.2d 530;  see also People v. Rivera, 5 N.Y.3d 61, 63, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160).

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