PEOPLE v. SWEEPER

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

The PEOPLE of the State of New York, Respondent, v. James SWEEPER, Defendant-Appellant.

Decided: March 22, 2001

SULLIVAN, P.J., ROSENBERGER, NARDELLI, TOM and MAZZARELLI, JJ. Claris R. Sukkar, for respondent. Lawrence J. Schwartz, for defendant-appellant.

Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered February 25, 1998, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The elements of force and of assistance by another person actually present were clearly established by the evidence, including credible testimony that defendant suggested to the victim that he was carrying a gun, and that defendant's accomplice displayed a gun before fleeing, in order to prevent pursuit by the victim.   Defendant's acquittal of robbery in the first degree does not warrant a different conclusion (see, People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694).

 The court was under no obligation to grant defendant's request to charge grand larceny in the fourth degree since that crime is not a lesser included offense of any degree of robbery (see, People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.