| People v Harvey |
| 2014 NY Slip Op 03533 [117 AD3d 873] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Barrington Harvey, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Daniel Bresnahan, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered June 30, 2011, convicting him of robbery in the first degree,robbery in the third degree (three counts), criminal possession of stolen property in thefifth degree (three counts), and resisting arrest, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofrobbery in the third degree under count three of the indictment, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of robbery in the first degree is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]), and, in any event, is without merit.Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of robbery in the first degree beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt ofrobbery in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, we find that the verdict of guilt on count three of the indictment, chargingthe defendant with robbery in the third degree, was against the weight of the evidence."A person is guilty of robbery in the third degree when he forcibly steals property" (PenalLaw § 160.05). Pursuant to Penal Law § 160.00 (1), "Aperson forcibly steals property and commits robbery when, in the course of committing alarceny, he uses or threatens the immediate use of physical force upon another person forthe purpose of . . . [p]reventing or overcoming resistance to the taking of theproperty or to the retention thereof immediately after the taking." With regard to countthree of the indictment and the incident involved therein, there was no evidencepresented to support the conclusion that the defendant used or threatened the use ofphysical force [*2]upon the victim to prevent orovercome resistance to the taking of her bag (cf. People v Dobbs, 24 AD3d 1043, 1044 [2005];People v Middleton, 212 AD2d 809, 809-810 [1995]). Thus, acquittal of thiscount would not have been unreasonable, and, based on the weight of the credibleevidence, the jury was not justified in finding the defendant guilty of robbery in the thirddegree under this count of the indictment (see generally People v Danielson, 9NY3d at 348). Accordingly, the conviction of robbery in the third degree under countthree of the indictment, and the sentence imposed thereon, must be vacated, and thatcount of the indictment must be dismissed.
The defendant's contention that trial counsel's failure to preserve certain claims forappellate review constituted ineffective assistance of counsel is without merit (see People v Bedford, 95AD3d 1226, 1226 [2012]; People v Cuyler, 95 AD3d 900, 901 [2012]; People v Erskine, 90 AD3d674, 675 [2011]).
The sentences imposed on the convictions of robbery in the first degree, robbery inthe third degree under counts two and four of the indictment, criminal possession ofstolen property in the fifth degree, and resisting arrest were not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention need not be reached in light of ourdetermination. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.