PEOPLE v. COLON

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The PEOPLE of the State of New York, Respondent, v. Angel COLON, Defendant–Appellant.

Decided: June 23, 2015

MAZZARELLI, J.P., SWEENY, ACOSTA, CLARK, KAPNICK, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Michael McLaughlin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered January 4, 2012, convicting defendant, after a jury trial, of robbery in the third degree, burglary in the third degree, and auto stripping in the second degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years,, unanimously affirmed.

Defendant's legal sufficiency claim regarding his robbery conviction is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ). The evidence amply supported the jury's conclusion that defendant used or threatened the immediate use of physical force for the purpose of retaining stolen property (see People v. Gordon, 23 NY3d 643, 649–651 [2014] ). The victim clearly testified that defendant did not drop the stolen property until after he “swung” at the victim. This violent act satisfied the element of force, and defendant's arguments to the contrary are without merit.

The court's Sandoval ruling was an improvident exercise of discretion only to the extent that it permitted inquiry into a criminal mischief conviction's underlying facts, which were extremely similar to the facts of the present case. However, we find the error to be harmless (see People v. Grant, 7 NY3d 421 [2006] ).