| People v McDaniel |
| 2008 NY Slip Op 06739 [54 AD3d 577] |
| September 9, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jermar McDaniel, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), rendered May 2, 2005,convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as apersistent violent felony offender, to a term of 20 years to life, affirmed. Order, same court andJustice, entered on or about October 28, 2005, which denied defendant's CPL 440.10 motion tovacate the judgment, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. There is no basis for disturbing the jury's determinations concerning identification andcredibility. The People proved beyond a reasonable doubt that defendant displayed whatappeared to be a firearm (Penal Law § 160.15 [4]). As defense counsel's own pre-chargecomments make clear, the victim's demonstrations during her testimony established thatdefendant made an objective display that could reasonably be perceived as a firearm and that thevictim actually perceived that display (see People v Lopez, 73 NY2d 214, 220 [1989];People v Baskerville, 60 NY2d 374, 381 [1983]).
Defendant's challenges to the prosecutor's summation and the court's failure to charge a lesserincluded offense are unpreserved and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal.
On the existing record, to the extent it permits review, we find that defendant receivedeffective assistance of counsel under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). Counsel advanced a persuasive, though ultimately unsuccessful, defense ofmisidentification. Concur—Tom, J.P., Friedman and Buckley, JJ.
Saxe and Catterson, JJ., dissent in part in a memorandum by Catterson, J., as follows: I amcompelled to dissent because I believe that for the first time, this Court is adopting a whollysubjective test to establish the elements of robbery in the first degree (Penal Law § 160.15[4]) in derogation of the Court of Appeals' holdings in People v Lopez (73 NY2d214[*2] [1989]) and People v Baskerville (60 NY2d 374[1983]).
Inexplicably, the majority contends that the People proved beyond a reasonable doubt thatthe defendant displayed what appeared to be a firearm. However, the record demonstrates that thedefendant never displayed anything at all. The victim testified that the defendant held one hand ather neck, threatened to kill her if she did not give him her money (but said nothing aboutshooting her), and held his other hand "under the arm," apparently near his waist. Although thevictim testified that she feared that the defendant had a gun in his coat and would use it, she didnot explain the basis for that fear. Nor did she testify that the defendant even threatened to use agun. Of course, the mere threat to use a firearm is insufficient to sustain a conviction; "it is the'display' of what appears to be a firearm, and not the mere threat to use one, which is required."(Lopez, 73 NY2d at 221.)
While her testimony was unclear as to what the defendant was doing with the hand that wasnot holding her by the neck, she simply never testified that the defendant kept a hand under hiscoat or in a pocket, or that he otherwise gestured to the presence of a firearm. "Although thedisplay element focuses on the fearful impression made on the victim, it is not primarilysubjective. The People must show that the defendant consciously displayed something that couldreasonably be perceived as a firearm . . . and that the victim actually perceived thedisplay." (People v Lopez, 73 NY2d at 220; see also People v Baskerville, 60NY2d at 381; People v Copeland, 124 AD2d 669, 670 [1986], lv denied 69NY2d 710 [1986].)
In Lopez, the defendant confronted the victim and announced that it was a "stickup."He then put his hand in his vest pocket as he demanded the victim's radio. The Court held thatsuch action on the part of the defendant was sufficient: "[a]ll that is required is that thedefendant, by his actions, consciously manifest the presence of an object to the victim in such away that the victim reasonably perceives that the defendant has a gun." (73 NY2d at 222.)
By comparison, the victim in this case testified that the defendant demanded money, put onehand to her throat and the other hand "under the arm." This amounts to nothing more than asubjective impression that the defendant might have had a gun. There is no evidence of aconspicuous and conscious display of a weapon, or what appeared to the victim to be a weapon,by the defendant.[*3]
Accordingly, I would reduce the conviction to robbery inthe third degree, and remand for resentencing.