| People v Vega |
| 2010 NY Slip Op 01429 [70 AD3d 521] |
| February 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JesusVega, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 27, 2008,as amended June 4, 2008, convicting defendant, after a jury trial, of robbery in the seconddegree, and sentencing him, as a second felony offender, to a term of 10 years, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility.
The court properly declined to submit robbery in the third degree as a lesser includedoffense, since there was no reasonable view of the evidence, viewed most favorably todefendant, that he robbed the victim but acted without an accomplice (see People vNegron, 91 NY2d 788 [1998]). "There was no reason for the jury to credit the victim. . . in general, but conclude that [he] invented the involvement of a second robber"(People v Camara, 44 AD3d492 [2007], lv denied 9 NY3d 1031 [2008]). Furthermore, according to the victim,the second robber played an integral role in the crime. In order to find that defendant robbed thevictim but acted alone, the jury would have been required to speculate that the robbery wascommitted in some alternative manner not described in any testimony. Thus, if the jury haddiscredited the victim's testimony, defendant would have been entitled to a complete acquittal,not a conviction of third-degree robbery. The same would be true had the jury discredited thetestimony of the victim [*2]while crediting that of the policeofficers; the police testimony about events that occurred immediately after the theft would nothave established a forcible taking. Concur—Friedman, J.P., Sweeny, Nardelli andFreedman, JJ.