| People v Gonzalez |
| 2009 NY Slip Op 01696 [60 AD3d 447] |
| March 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Gonzalez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered March 16,2007, convicting defendant, after a jury trial, of robbery in the second and third degrees, grandlarceny in the third degree and grand larceny in the fourth degree (three counts), and sentencinghim, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimouslyaffirmed.
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. The element of force required for the robbery convictions was establishedby evidence that defendant, after stealing several items from a store, engaged in pushing,fighting and kicking in an effort to defeat two store employees' efforts to recover the property.Since defendant was in possession of the stolen property while he was engaged in such use offorce and never discarded or even sought to relinquish it, the evidence supports the inference thathis purpose in using force was to retain control of the property and not merely to escape ordefend himself (see e.g. People v Brandley, 254 AD2d 185 [1998], lv denied 92NY2d 1028 [1998]). Force employed by a thief to repel force initiated by a victim to prevent thethief from retaining the stolen property is still force within the meaning of Penal Law §160.00 (1).
The court properly denied defendant's request to submit to the jury robbery in the thirddegree as a lesser included offense of robbery in the second degree with respect to one of theemployees. Given the nature of the wounds inflicted, which included bloody cuts, abrasions anda bite wound, the fact that the employee received medical treatment including stitches, and theemployee's testimony that he was unable to write for several days and felt pain for a week or twoafter the incident, there was no reasonable view of the evidence, viewed most favorably todefendant, that he committed the robbery but did not cause the employee physical injury withinthe meaning of Penal Law § 10.00 (9) (see People v Beasley, 238 AD2d 433[1997], lv denied 90 NY2d 938 [1997]). In determining whether the evidence warrantedsubmission of the lesser included offense, "[o]ur inquiry is not directed at whether persuasiveevidence of guilt of the greater crime exists, as it does here, but whether, under any reasonableview of the evidence, it is [*2]possible for the trier of facts toacquit defendant on the higher count and still find him guilty of the lesser one." (People vVan Norstrand, 85 NY2d 131, 136 [1995].) Here, the evidence was not merely persuasivethat the employee sustained physical injury; the jury had no rational basis upon which toconclude that the injuries were merely "petty slaps, shoves, kicks and the like" (Matter ofPhilip A., 49 NY2d 198, 200 [1980]) that did not satisfy the statutory definition (People v Chiddick, 8 NY3d 445[2007]). Concur—Tom, J.P., Friedman, Gonzalez, Sweeny and McGuire, JJ.