| People v Sharma |
| 2013 NY Slip Op 08362 [112 AD3d 494] |
| December 12, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dennis Sharma, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea fo counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), renderedDecember 22, 2011, convicting defendant, after a jury trial, of robbery in the first degree,and sentencing him to a term of five years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The evidence warranted theconclusion that when defendant displayed a knife to a store employee who wasattempting to stop him from stealing merchandise, defendant threatened the immediateuse of a dangerous instrument for the purpose of preventing or overcoming resistance tohis retention of the property (seee.g. People v Boisseau, 33 AD3d 568 [2006], lv denied 8 NY3d 844[2007]; People v Young, 16AD3d 196 [1st Dept 2005], lv denied 4 NY3d 858 [2005]; People vThompson, 273 AD2d 153 [1st Dept 2000], lv denied 95 NY2d 908 [2000]).Even if, in the abstract, the display of an instrument does not necessarily constitute athreat to use it, here, given the circumstances, there was no reasonable explanation ofdefendant's conduct other than an implied threat to use the knife against the employee.Accordingly, the display, coupled with the surrounding circumstances, satisfied the"threatened use" element of Penal Law § 160.15 (3), and defendant's statutoryinterpretation argument is unavailing.
The court appropriately exercised its discretion under People v Molineux(168 NY 264 [1901]) in admitting testimony with respect to the employee's priorencounters with defendant in the store. This evidence was relevant as backgroundinformation to explain the reaction of the store employee upon seeing defendant carryingthe merchandise, and any prejudicial effect of its admission was mitigated by the court'sextensive limiting instructions. We find that, under the circumstances here, the court didnot abuse its discretion by failing to employ other less prejudicial means of filling thenarrative gap (see People vMorris, 21 NY3d 588 [2013]). Defendant did not preserve his challenge to adetective's testimony about the circumstances under which defendant became a suspect inthis case, and we decline to review it in the interest of justice. As an alternative holding,we also reject it on the merits. Concur—Mazzarelli, J.P., Sweeny, DeGrasse,Manzanet-Daniels and Feinman, JJ.