| People v Nunez |
| 2009 NY Slip Op 02535 [61 AD3d 409] |
| April 2, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marcos Nunez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mark Dwyer of counsel), forrespondent.
Judgment, Supreme Court, New York County (James A. Yates, J.), rendered March 13,2007, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robberyin the second degree (two counts) and burglary in the first degree, and sentencing him, as asecond violent felony offender, to an aggregate term of 30 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There was probable cause fordefendant's arrest based on evidence that he had pawned property taken in a robbery (seePeople v Radoncic, 239 AD2d 176, 179 [1997], lv denied 90 NY2d 897 [1997]).Defendant's recent, exclusive possession of the property warranted the inference that he wasguilty of either robbery or criminal possession of stolen property (see People v Galbo,218 NY 283, 290 [1916]), and the possibility that he might have innocently acquired theproperty did not negate probable cause, which does not require proof beyond a reasonable doubt(see People v Tinort, 272 AD2d 206, 207 [2000], lv denied 95 NY2d 872[2000]). The record also supports the court's finding that the lineup was not unduly suggestive(see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).
The evidence was sufficient to establish the physical injury element of the second-degreerobbery convictions. The jury was entitled to credit the victims' descriptions of their injuries(see People v Guidice, 83 NY2d 630, 636 [1994]), and to draw the conclusion that theseinjuries were more than mere "petty slaps, shoves, kicks and the like" (Matter of PhilipA., 49 NY2d 198, 200 [1980]; seealso People v Chiddick, 8 NY3d 445, 447 [2007]).
The People's rebuttal evidence clearly tended to disprove defendant's case (see e.g.People v Payne, 235 AD2d 235 [1997], lv denied 89 NY2d 1039 [1997]), anddefendant's arguments to the contrary are without merit. We are aware of no rule requiring thePeople to anticipate evidence a defendant might introduce and "rebut" it in advance on theirdirect case. In [*2]any event, the testimony presented on rebuttalwas admissible as a matter of discretion (see CPL 260.30 [7]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman,Moskowitz and Acosta, JJ.