The People of the State of New York, Respondent, v. David Cruzado, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department.

The People of the State of New York, Respondent, v. David Cruzado, Defendant–Appellant.

288

Decided: February 23, 2016

Tom, J.P., Andrias, Moskowitz, Richter, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (William Terrell, III of counsel), for respondent.

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Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered November 9, 2012, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007] ).  The evidence supports the conclusion that when defendant used force against a store employee, at least one of his objectives was to overcome the employee's resistance to defendant's retention of stolen merchandise (see People v. Gordon, 23 NY3d 643, 649–651 [2014] ).  The record establishes that defendant still had the merchandise at the time he punched the employee and that he lost possession of it only in the midst of the altercation (see People v. Colon, 129 AD3d 597, 597 [1st Dept 2015], lv denied 26 NY3d 966 [2015] ).  Thus, defendant's statement that he would surrender the merchandise was negated by his actions.

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CLERK