| People v Desjardins |
| 2014 NY Slip Op 00372 [113 AD3d 787] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jocelyn Desjardins, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered December 18, 2009, convicting him of robbery in the first degree(five counts), robbery in the second degree (five counts), and criminal possession ofstolen property in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofrobbery in the first degree and robbery in the second degree pertaining to a robbery thattook place March 9, 2007, vacating the sentences imposed thereon, and dismissingcounts 37 and 38 of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally insufficient to prove thedefendant's identity as one of the people involved in a robbery that took place on March9, 2007. We therefore vacate the convictions of robbery in the first degree and robbery inthe second degree pertaining to March 9, 2007, vacate the sentences imposed thereon,and dismiss counts 37 and 38 of the indictment.
Contrary to the defendant's contention, the trial court properly denied his request tohave robbery in the third degree (see Penal Law § 160.05) charged as alesser-included offense of robbery in the first degree (see Penal Law §160.15 [4]), pertaining to the robberies committed on December 17, 2006, January 4,2007, February 18, 2007, and March 16, 2007. Viewing the evidence in the light mostfavorable to the defendant (seePeople v Devonish, 6 NY3d 727, 728 [2005]), the robbery victims' testimonyestablished that during each of these robberies, one or more of the perpetratorsconsciously manifested the presence of an object to one or more of the victims in such away that the victim reasonably believed that the perpetrator had a weapon (see Peoplev Baskerville, 60 NY2d 374 [1983]; People v Micolo, 30 AD3d 615 [2006]; People v Rogers, 19 AD3d437 [2005]; see also Gonzalez v Reiner, 177 F Supp 2d 211 [SD NY 2001];Taylor v Kuhlmann, 36 F Supp 2d 534 [ED NY 1999]). Thus, no reasonableview of the evidence supported charging robbery in the third degree, which does notrequire the display of a weapon, as a lesser-included offense (see Penal Law§ 160.05).
The defendant's contention that the trial court violated his right to a fair trial and his[*2]right to counsel by improperly curtailing his right topresent an effective argument in summation is unpreserved for appellate review (see People v Nails, 95 AD3d1237 [2012]; People vPaixao, 23 AD3d 677 [2005]; People v McCollough, 16 AD3d 183 [2005]; CPL 470.05[2]). In any event, the trial court properly limited defense counsel's summation remarksunder the circumstances of this case (see People v Nails, 95 AD3d 1237 [2012]; People v Thomas, 85 AD3d1572 [2011], affd 21 NY3d 226 [2013]; People v Paixao, 23 AD3d 677 [2005]; People vRamos, 305 AD2d 115 [2003]). Accordingly, the defendant was not deprived of hisright to a fair trial.
The sentence imposed was not excessive (see People v Delgado, 80 NY2d780 [1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People vSuitte, 90 AD2d 80, 85-86 [1982]). Dillon, J.P., Dickerson, Austin and Sgroi, JJ.,concur.