| People v Davis |
| 2008 NY Slip Op 00375 [47 AD3d 506] |
| January 22, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Davis, Appellant. The People of the State of New York,Respondent, v Larea Flores, Appellant. The People of the State of New York, Respondent, vTebrue James, Appellant. |
—[*1] Law Office of Sam Braverman, Bronx (Samuel Braverman of counsel), for Larea Floresappellant. Robert S. Dean, Center for Appellate Litigation, New York City (Barbara Zolot of counsel),for Tebrue James appellant. Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel),for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 2, 2006,convicting defendant Davis, after a jury trial, of robbery in the first and second degrees and bailjumping in the second degree, and sentencing him to an aggregate term of six years, unanimouslyaffirmed. Judgment, same court and Justice, rendered May 23, 2006, convicting defendant Flores,after a jury trial, of robbery in the first and second degrees, and sentencing her [*2]to an aggregate term of five years, unanimously affirmed.Judgment, same court and Justice, rendered June 13, 2006, convicting defendant James, after ajury trial, of robbery in the first and second degrees, and sentencing him to an aggregate term ofeight years, affirmed.
To the extent that defendants Davis and Flores are raising legal sufficiency claims, thoseclaims are unpreserved and we decline to review them in the interest of justice. Were we toreview these claims, we would reject them. We also find that none of the verdicts was against theweight of the evidence. There is no basis for disturbing the jury's determinations concerningcredibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant James was not entitled to have the court submit third-degree robbery to the jury asa lesser included offense of first-degree robbery, since there was no reasonable view of theevidence to support that charge (see People v Negron, 91 NY2d 788 [1998]; People vWhitfield, 287 AD2d 393 [2001], lv denied 97 NY2d 689 [2001]). The victim wascertain that the robbers displayed what appeared to be a firearm, and there was no reason for thejury to selectively discredit only that portion of his testimony. Although an accomplice whotestified for the People stated that, while standing across the street from the robbery and acting asa lookout, he never saw anyone display a firearm, this was insufficient to create a reasonableview warranting submission of the lesser offense. Moreover, the accomplice testified that heheard defendant Davis make a verbal threat to use a firearm against the victim.
Similarly, the court properly denied Flores's request for an instruction on the affirmativedefense contained in Penal Law § 160.15 (4). "A defendant is entitled to a charge on theaffirmative defense to robbery in the first degree when there is presented sufficient evidence forthe jury to find by a preponderance of the evidence that the elements of the defense are satisfied,i.e., that the object displayed was not a loaded weapon capable of producing death or otherserious physical injury" (People v Gilliard, 72 NY2d 877, 878 [1988]). Under thecircumstances under which the crime was committed, the fact that the police were unable torecover a weapon did not, either by itself or when taken together with the other evidence, warrantsubmission of that defense.
We find no basis to reduce any of the sentences.
We have considered and rejected defendants' remaining claims. Concur—Marlow,Williams, Buckley and Malone, JJ.
Andrias, J.P., dissents in part in a memorandum as follows: While I agree with the majoritythat there is no merit to the legal insufficiency claims of defendants Davis and Flores and that thesecond-degree robbery verdicts as to all defendants and the bail jumping verdict as to defendantDavis were not against the weight of the evidence, I would modify defendant James's convictionsto the extent of vacating the first-degree robbery conviction and the sentence imposed thereonand remitting the matter for a new trial on that charge.
The victim was certain that the robbers displayed what appeared to be a firearm, and anaccomplice, who testified for the People, testified that he heard defendant Davis make a verbal[*3]threat to use a firearm against the victim. However, theaccomplice also testified that, while standing across the street from the robbery and acting as alookout, he never saw anyone display a firearm, and on cross-examination he testified that, afterhe was apprehended, although he told the police at the precinct that he knew nothing about a gun,he did not put it in his written statement, but wrote down what the police told him to write. At thecharge conference, counsel for defendant James requested that the court charge the jury onrobbery in the third degree because "[i]f they didn't believe my client had a gun, if there was nogun available." Without further discussion, the court denied his request, stating: "There is noreasonable view of the evidence that it was not at least two or more people acting together, sothat would make robbery in the third degree an inappropriate charge, because if they believed anyrobbery, it had to be by two or more people, I believe." However, while second-degree robbery(acting in concert) is not a lesser included offense of first-degree robbery, third-degree robbery(forcible taking of another's property) is (see People v Miller, 87 NY2d 211, 214-215,217 [1995]).
"[A] refusal to charge a lesser included crime is warranted only where every possiblehypothesis but guilt of the higher crime [is] excluded" (People v Johnson, 45 NY2d 546,549 [1978] [internal quotation marks and citations omitted]). In deciding whether a reasonableview of the evidence warrants submission of the lesser offense to the jury, the court is required toview the evidence in the light most favorable to the defendant (id.). Inasmuch as the jurywas free to accept or reject part or all of the accomplice's testimony (id.), and viewingsuch testimony in the light most favorable to the defendants, the jury could reasonably havefound that the robbers did not display a firearm. Defendant James was therefore entitled to havethe court submit third-degree robbery to the jury as a lesser included offense of first-degreerobbery. Inasmuch as it appears on the present record that Davis and Flores made no similarrequest for a charge down, the court's failure to submit the lesser included offense did notconstitute error as to them (CPL 300.50 [2]). Moreover, having failed to raise the issue on theirappeals, they must be deemed to have waived it.