| People v Stroud |
| 2008 NY Slip Op 08032 [55 AD3d 1047] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Olympia Stroud,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 15,2006 in Albany County, upon a verdict convicting defendant of the crime of robbery in the third degree.
Defendant was indicted for the crimes of robbery in the third degree and petit larceny as a result ofallegations that she and her husband shoplifted movie DVDs from a Wal-Mart store. Following a trial,defendant was found guilty of robbery in the third degree and sentenced to 2 to 4 years in prison. Shenow appeals.
Defendant contends that there was legally insufficient evidence to support a finding that she usedforce to steal the DVDs from the store because the larceny allegedly ended when the DVDs fell out ofher husband's jacket onto the ground and any force she may have used thereafter amounted to theuncharged crime of assault rather than robbery. Penal Law § 160.00 (1) states that "[a] personforcibly steals property and commits robbery when, in the course of committing a larceny, he [or she]uses or threatens the immediate use of physical force upon another person for the purpose of. . . [p]reventing or overcoming resistance to the taking of the property or to the retentionthereof immediately after the taking."
At trial, the People presented the testimony of a Wal-Mart employee who, after [*2]observing defendant and her husband shoplift the DVDs, approachedthem as they were exiting the store and demanded the return of the merchandise. As defendant and herhusband attempted to push by the employee, they forced the employee out of the store and defendanthit him in the neck with her hand. At that point, defendant's husband took off his jacket, the DVDs fellout of his pocket and defendant and her husband continued to fight with the employee until the policearrived. Upon viewing the evidence in the light most favorable to the People, we conclude that arational trier of fact could find, beyond a reasonable doubt, that force was used in the course ofdefendant's effort to retain the stolen DVDs (see People v Contes, 60 NY2d 620, 621 [1983];People v Woodridge, 30 AD3d898, 900 [2006], lv denied 7 NY3d 852 [2006]; People v Monroe, 277 AD2d598, 599 [2000]; People v Johnson, 215 AD2d 590, 590 [1995], lv denied 86 NY2d843 [1995]; compare People v Dobbs,24 AD3d 1043, 1044 [2005]). Further, we are satisfied that the jury afforded proper weight tothe evidence in light of testimony regarding defendant's physical response when the employee asked forthe return of the DVDs (see People v Woodridge, 30 AD3d at 900; People v Jones, 4 AD3d 622, 623-624[2004], lv denied 2 NY3d 801 [2004]; People v Brandley, 254 AD2d 185, 185[1998], lv denied 92 NY2d 1028 [1998]).
Defendant also contends that the jury was confused by the definition of robbery and, after the juryrequested the Penal Law definitions of robbery in the third degree and attempted robbery in the thirddegree, Supreme Court provided insufficient supplementary instructions. Inasmuch as Supreme Courtread the requested definitions and defense counsel twice stated that he had no exceptions, requests orsuggestions with regard to the jury's inquiry, the issue is unpreserved for our review (see CPL470.05 [2]; People v Gilbo, 52 AD3d952, 954 [2008]). In any event, were we to consider it, we would find these contentions to be,respectively, speculative and without merit.
Peters, J.P., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.