PEOPLE v. HELLER

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

The PEOPLE of the State of New York, Respondent, v. Eric D. HELLER, Appellant.

Decided: November 25, 2009

Before:  CARDONA, P.J., PETERS, LAHTINEN, KANE and STEIN, JJ. Michael I. Getz, Clifton Park, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel), for respondent.

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered April 2, 2008, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree, grand larceny in the fourth degree and criminal possession of a weapon in the fourth degree.

Defendant was charged in a three-count indictment with robbery in the first degree, grand larceny in the fourth degree and criminal possession of a weapon in the fourth degree, arising out of a car theft and subsequent bank robbery.   County Court denied his motion to dismiss the robbery count on the ground that the evidence before the grand jury was legally insufficient.   Thereafter, defendant pleaded guilty to all three counts and was sentenced to an aggregate prison term of 12 years and postrelease supervision of five years.   Defendant now appeals and we affirm.

 By pleading guilty, defendant waived his argument that the evidence before the grand jury was legally insufficient to support an indictment upon the robbery count (see People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Cintron, 62 A.D.3d 1157, 1158-1159, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009];  People v. Melendez, 48 A.D.3d 960, 960, 852 N.Y.S.2d 440 [2008], lv. denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ).   In any event, defendant claims that the evidence before the grand jury did not establish that he threatened the use of a dangerous instrument (see Penal Law § 160.15[3] ), but it included his statement to police that he leapt over the counter at a bank and, while holding a knife in his hand, ordered the teller in front of him to put money in a bag.   Viewed in the light most favorable to the People (see People v. Serkiz, 17 A.D.3d 28, 29-30, 790 N.Y.S.2d 296 [2005] ), that evidence would have warranted defendant's conviction and was legally sufficient (see People v. Mitchell, 59 A.D.3d 739, 740, 874 N.Y.S.2d 226 [2009], lv. denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009];  People v. Thompson, 273 A.D.2d 153, 153, 710 N.Y.S.2d 333 [2000], lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 [2000] ).

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., LAHTINEN, KANE and STEIN, JJ., concur.

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