PEOPLE v. BRANDLEY

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

The PEOPLE of the State of New York, Respondent, v. Christopher BRANDLEY, Defendant-Appellant.

Decided: October 22, 1998

Before NARDELLI, J.P., and RUBIN, TOM and MAZZARELLI, JJ. Susan Axelrod, for Respondent. Elon Harpaz, for Defendant-Appellant.

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered April 28, 1997, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence to establish that defendant, after shoplifting two compact discs from the store, engaged in pushing, fighting, kicking and wrestling in an effort to defeat the security guards' efforts to recover the property, such as to constitute the use of physical force for the purpose of “[p]reventing or overcoming resistance ․ to the retention of [the property] immediately after the taking” (Penal Law § 160.00[1] ).  Given that defendant was in possession of the stolen property while he was engaged in such use of force, the jury was entitled to infer that his purpose in using force was to retain control of the stolen property, not merely to escape or defend himself (People v. Thomas, 226 A.D.2d 120, 640 N.Y.S.2d 503, lv. denied, 88 N.Y.2d 886, 887, 645 N.Y.S.2d 461, 668 N.E.2d 432).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.