| People v Rivera |
| 2010 NY Slip Op 07381 [77 AD3d 483] |
| October 19, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RichardRivera, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered June 22, 2009, asamended June 26, 2009, convicting defendant, after a jury trial, of robbery in the second and thirddegrees, grand larceny in the fourth degree (two counts) and criminal possession of stolen property inthe fourth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 18years to life, unanimously modified, on the law, to the extent of vacating the second-degree robberyconviction and dismissing the corresponding count of the indictment with leave to re-present anyappropriate charges to the grand jury, and otherwise affirmed.
The court improperly denied defendant's request to submit third-degree robbery to the jury as alesser included offense of first-degree robbery with regard to the incident of June 7, 2006. Initially, wereject the People's argument that defendant failed to preserve this issue (see CPL 470.05 [2]).Defendant specifically requested that charge and never abandoned that request. Moreover, the courtexpressly ruled on that request when it determined that it would charge second-degree robbery basedon the affirmative defense that the allegedly displayed weapon was not actually a loaded firearm(see Penal Law § 160.15 [4]), but would not charge third-degree robbery. In any event,to the extent defendant could be viewed as not adequately preserving this argument, we reach it in theinterest of justice.
There is a reasonable view of the evidence, viewed most favorably to defendant, that he forciblystole property by threatening the victim with harm while displaying an object that not only was not anactual loaded firearm, but which did not even appear to be a firearm. The victim's testimony that shebelieved that defendant had a firearm was impeached by her grand jury testimony that she believeddefendant was pretending to have a firearm and that the object he was holding was "too small to be agun." The victim's direct testimony was also cast in doubt by her testimony on cross-examination thatshe believed defendant had a weapon, but not necessarily a firearm.
Since the jury acquitted defendant of first-degree robbery, but convicted him of the lesser includedoffense of second-degree robbery, there is presently no count of robbery in the second degree in theindictment on which to remand for a new trial (see People v Mayo, 48 NY2d 245, [*2]253 [1979]).
In view of the foregoing, we need not reach defendant's other claims. Concur—Gonzalez,P.J., Tom, Catterson, Moskowitz and Richter, JJ.