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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Mark WHITFIELD, Defendant-Appellant.

Decided: October 25, 2001

NARDELLI, J.P., TOM, ANDRIAS, LERNER, and MARLOW, JJ. T. Charles Won, for Respondent. Andrew C. Fine& Amy Donner, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered July 14, 1998, convicting defendant, after a nonjury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

The court properly refused to consider robbery in the third degree as a lesser included offense.   There was no reasonable view of the evidence, viewed most favorably to defendant, that he stole the victim's property by force, but without displaying what appeared to be a firearm.   Both the victim and his wife presented integrated testimony (see, People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32) that the victim surrendered his property after defendant displayed a pistol.   The evidence suggests no alternative means by which the robbery may have been committed.   Furthermore, under the circumstances, the fact that a weapon was not recovered from defendant was insufficient to create a reasonable view of the evidence warranting the court's consideration of third-degree robbery (see, People v. Rice, 81 A.D.2d 515, 446 N.Y.S.2d 47, lv. denied 53 N.Y.2d 946, 440 N.Y.S.2d 1045, 423 N.E.2d 412).

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844).

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