People v Akomah

2008 NY Slip Op 05086

Decided on June 3, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
MARK C. DILLON
WILLIAM E. McCARTHY
ARIEL E. BELEN, JJ.
2006-02348
(Ind. No. 2355/05)






Steven Banks, New York, N.Y. (Lawrence T. Hausman and White
& Case, LLP [Jenna Z. Nicenko, Peter B. Patterson, and R. Gregory
Parker], of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Thomas M. Ross, and
Hayward H. Smith of counsel), for
respondent.


DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered February 10, 2006, convicting him of robbery in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. Justice Belen has been substituted for Justice Chambers (see 22 NYCRR 670.1[c]).

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in denying his request to submit the lesser-included offense of robbery in the third degree to the jury. However, the defendant's conduct, as perceived by the complainant, was the display of a gun within the meaning of Penal Law § 160.10(2). Thus, a reasonable view of the evidence would not support the conclusion that the crime occurred without the display of a gun (see People v Cooper, 294 AD2d 592; People v Ruiz, 220 AD2d 466; People v Maynard, 211 AD2d 505; People v Mays, 178 AD2d 557). Accordingly, the defendant's request for a charge on the lesser-included offense of robbery in the third degree was properly denied.

Moreover, the trial court properly refused to charge the non-inclusory concurrent count of grand larceny in the fourth degree (see CPL 300.40[3][a]; People v Leon, 7 NY3d 109, 113-114).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
MILLER, J.P., DILLON, McCARTHY and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court