| People v Allen |
| 2011 NY Slip Op 06203 [87 AD3d 450] |
| August 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Terrence Allen, Also Known as Tony Green,Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered October 18,2007, convicting defendant, after a jury trial, of robbery in the first and third degrees, andsentencing him, as a second felony offender, to concurrent terms of eight years, unanimouslyaffirmed.
Defendant was charged with first-degree robbery under a theory of displaying what appearedto be a firearm. He asserted the affirmative defense that the object displayed was not actually aloaded, operable firearm (Penal Law § 160.15 [4]). In convicting defendant of first-degreerobbery with regard to one of his victims, the jury determined that defendant failed to establishthe affirmative defense. We find no merit to defendant's contention that this determination wasagainst the weight of the evidence.
Defendant and a companion were observed hanging around a restaurant, drinking whiskeyand behaving in a disorderly manner. They engaged in conversation with two persons, whomthey ultimately robbed. One of the victims had heard defendant make threatening statements,including that "somebody could get shot" and that he was going to "get somebody." During therobbery, defendant placed his hand under his sweatshirt, leading the victims to believe thatdefendant had a weapon. At one point, defendant even threatened to "blast" one of the victims.However, neither victim actually saw any part of a firearm.
When one of the victims went to seek assistance, defendant and his companion remained atthe scene, where they continued to converse with the second victim. A woman who appeared tobe acquainted with both the victim and defendant intervened and eventually convinced defendantto return almost all of the property he had taken from the two victims.
Defendant then crossed the street, met some other men, and remained out of sight for a fewminutes. After defendant returned and resumed his conversation with the second victim, the firstvictim arrived with the police, who frisked a large group of men, including defendant. Noweapons were recovered.
We find that the preponderance of the evidence fails to rebut the jury's conclusion thatdefendant was armed. While nothing resembling a firearm was actually viewed and no one [*2]observed defendant attempt to dispose of any object, the statute issatisfied by the conscious display of something that, although obscured or hidden within agarment, is witnessed by the victim—by sight, touch or sound—and the victimperceives this display as a threat with a firearm (People v Baskerville, 60 NY2d 374, 381[1983]; People v McDaniel, 54 AD3d 577, 577-578 [2008], affd 13 NY3d 751[2009]). Moreover, defendant had ample opportunity to rid himself of a firearm while, aftercrossing the street, he was unobserved for several minutes. Defendant had reason to dispose ofthe firearm because he was aware that the first victim had left and would most likely return withthe police to assist his friend.
Defendant's contention that the verdict was against the weight of the evidence with regard tothe element of intent to permanently deprive another person of property is likewise without merit.Defendant had the requisite intent at the time of the taking, regardless of whether he subsequentlychanged his mind.
The court properly denied defendant's request for an intoxication instruction. The evidence,viewed most favorably to defendant, was insufficient for a reasonable person to entertain a doubtas to the element of intent on the basis of intoxication (see People v Gaines, 83 NY2d925, 927 [1994]; People v Rodriguez, 76 NY2d 918, 920 [1990]).
Defendant did not preserve his challenges to the prosecutor's remarks on summation, and wedecline to review them in the interest of justice. As an alternative holding, we find no basis forreversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976[1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz andManzanet-Daniels, JJ.