| People v Barksdale |
| 2008 NY Slip Op 03139 [50 AD3d 400] |
| April 10, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Barksdale, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered June 14, 2006,convicting defendant, after a jury trial, of robbery in the second degree, burglary in the thirddegree (two counts) and criminal possession of stolen property in the fifth degree, and sentencinghim, as a second violent felony offender, to concurrent terms of 9½ years, 3 to 6 years, 3 to6 years, and one year, respectively, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility, including its evaluation of a witness's testimony regarding the degree offorce defendant used against him.
Defendant and a codefendant entered two drugstores during the early morning hours. In eachstore, the codefendant, seemingly intent on making a purchase, interacted with store personnel asdefendant entered the pharmacy area, which in each case, was enclosed by a wall and counter andaccessible only through a door, although the door was unlocked. In the first store, an employeedirected defendant to leave the pharmacy area, and defendant departed without taking anything.In the second store, defendant stole boxes of expensive diabetic test strips from the pharmacyarea, and when an employee tried to stop him, defendant pushed an employee out of the way withconsiderable force.
Defendant's act of forcibly pushing the employee out of the way as he attempted to leave thestore with stolen merchandise established the crime of robbery (see Penal Law §160.00 [1]; People v Green, 277 AD2d 82 [2000], lv denied 96 NY2d 784[2001]). The conduct of the codefendant in apparently casing each store, distracting employeeswhile defendant entered the pharmacy area, and fleeing with him after the theft supported theconclusion that defendant was aided by another person actually present, thereby satisfying thatelement of second-degree robbery (see Penal Law § 160.10 [1]; People v Hazel, 26 AD3d 191[2006], lv denied 6 NY3d 848 [2006]). Each pharmacy area was unmistakably closed tothe public notwithstanding the absence of any warning sign or additional security measures(see People v Powell, 58 NY2d 1009, 1010 [1983]), thus establishing the trespasselement of burglary. The evidence also [*2]supports the inferencethat defendant entered each pharmacy area with intent to commit a crime.
The court properly exercised its discretion in declining to declare a mistrial based on allegedjuror misconduct, or to conduct a further investigation regarding the identity of the juror involvedtherein. After making a thorough individual inquiry of each juror, the court properly concludedthat the initially unidentified juror who had engaged in the improper conduct in question was ajuror whom the court had discharged for other reasons (see People v Ortiz, 45 AD3d 368 [2007]). The circumstances didnot warrant any further efforts to identify the errant juror.
We perceive no basis for reducing the sentence. Concur—Gonzalez, J.P., Nardelli,Buckley and Catterson, JJ.