| People v Stone |
| 2007 NY Slip Op 08498 [45 AD3d 1270] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas C.Stone, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July28, 2004. The judgment convicted defendant, upon a jury verdict, of robbery in the third degreeand petit larceny.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,robbery in the third degree (Penal Law § 160.05), defendant contends that the verdict isagainst the weight of the evidence with respect to the robbery count because he did not use forceto prevent or overcome resistance to the taking of stolen property but, rather, he used force toescape from the store security personnel prior to the arrival of the police. He further contends thatthe verdict is against the weight of the evidence because his use of force did not immediatelyfollow the taking of the stolen property. Contrary to defendant's contention, the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The People presented evidence establishing that defendant was stopped by store securitypersonnel as he attempted to leave a drugstore with stolen merchandise. He was taken to thestore's break room and asked to produce the stolen merchandise from his pockets. Whendefendant refused to do so and threatened the use of force, the police were called. Defendant thenused force to escape from the store with some of the merchandise in his pockets. Although therewas a gap in time between defendant's taking of the merchandise and defendant's use of force,defendant did not relinquish the merchandise prior to fleeing the store (cf. People vKellam, 189 AD2d 1008, 1009 [1993]). " 'Given that defendant was in possession of thestolen property while he was engaged in such use of force, the jury was entitled to infer that hispurpose in using force was to retain control of the stolen property, not merely to escape' " (People v Jones, 4 AD3d 622,623-624 [2004], lv denied 2 NY3d 801 [2004]). We have examined defendant'sremaining contention and conclude that it is lacking in merit. Present—Hurlbutt, J.P.,Martoche, Smith, Lunn and Peradotto, JJ.