| People v Johnson |
| 2013 NY Slip Op 06709 [110 AD3d 920] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronnie A. Johnson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Deborah E. Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered January 3, 2012, convicting him of robbery in the third degree,burglary in the third degree, criminal mischief in the third degree, and possession ofburglar's tools, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofrobbery in the third degree and vacating the sentence imposed thereon; as so modified,the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of robbery in the third degree beyond a reasonable doubt(see Penal Law § 160.05).
Nevertheless, upon the exercise of our factual review power (see CPL 470.15[5]), we find the conviction of robbery in the third degree to be against the weight of theevidence. It is undisputed that the defendant entered a commercial warehouse owned bythe complainants in order to steal property. While the defendant was in the warehouse,the complainants entered the warehouse. The defendant, upon hearing them enter, hidbehind a door, and placed on the floor a crowbar and screwdriver he had brought withhim. When the complainants noticed the defendant, he came out from behind the doorand stood looking at them. The complainants testified that the defendant had his righthand in his jacket pocket, creating a bulge, which they believed might have been aweapon. When the complainants told the defendant to leave, he fled, taking with him abackpack which contained property he took from the warehouse. The defendant testifiedthat he had his hand in his pocket because, with his thoughts on escaping, he was holdingonto his car keys so that they would not fall out of his shallow pocket.
To convict the defendant of robbery in the third degree, the People were required toprove that the defendant used or threatened the immediate use of physical force uponanother person for the purpose of preventing or overcoming resistance to the taking orretention of the property (see Penal Law §§ 160.05, 160.00). ThePeople's only theory as to how the defendant used or threatened the immediate use ofphysical force was that the defendant intentionally placed his hand in his pocket in such away as to simulate possession of a gun.
While the defendant was convicted of robbery in the third degree, he was acquitted[*2]of burglary in the second degree. A person is guiltyof burglary in the second degree where "he [or she] knowingly enters or remainsunlawfully in a building with intent to commit a crime therein, and when. . . [he or she] [d]isplays what appears to be a . . . firearm"(Penal Law § 140.25 [1] [d]). This Court has held that where an unarmed person"positions his hand in his pocket in a manner that is intended to convey to his victim theimpression that he is holding a firearm," that qualifies as displaying what appears to be agun (People v Knowles, 79 AD2d 116, 116 [1981]; see People v Lopez,73 NY2d 214, 220 [1989]). Since the defendant here admitted to knowingly entering thewarehouse with the intent to commit a crime therein, the acquittal of burglary in thesecond degree could only be based upon the People's failure to prove that the defendantdisplayed what appeared to be a firearm, or, in other words, upon the People's failure toprove that the defendant positioned his hand in his pocket in a manner intended toconvey to the complainants the impression that he was holding a gun.
The trial court's factual finding that the defendant did not display what appeared tobe a firearm is supported by the record. The trial court, however, failed to give thatfinding the proper weight with respect to the crime of robbery in the third degree (see People v Lindsey, 52AD3d 527, 529-530 [2008]). If the People failed to prove that the defendantdisplayed what appeared to be a firearm by holding his hand in his pocket, then there wasno basis on which the trial court could conclude that the defendant's conduct of holdinghis hand in his pocket constituted a threat to use immediate physical force upon thecomplainants in order to overcome their resistance. Accordingly, the verdict of guilt withrespect to robbery in the third degree was against the weight of the evidence, and wevacate that conviction and the sentence imposed thereon (see People v Small, 109 AD3d842 [2013]; People v Lindsey, 52 AD3d at 530).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Skelos, J.P., Dickerson, Hall and Miller, JJ., concur.