| People v Young |
| 2014 NY Slip Op 05023 [119 AD3d 406] |
| July 3, 2014 |
| Appellate Division, First Department |
[*1]
| 1 The People of the State of New York,Respondent, v Otis Young, Appellant. |
Steven Banks, The Legal Aid Society, New York (William B. Carney of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J., at suppressionhearing; Analisa Torres, J., at jury trial and sentencing), rendered June 3, 2010,convicting defendant of robbery in the first degree (two counts), robbery in the seconddegree (two counts) and criminal possession of stolen property in the fifth degree, andsentencing him, as a persistent violent felony offender, to an aggregate term of 25 yearsto life, unanimously modified, on the law, to the extent of vacating the conviction ofrobbery in the second degree pursuant to Penal Law § 160.10 (2) (b) underthe fourth count of the indictment and dismissing that count, and otherwiseaffirmed.
The court properly denied defendant's suppression motion. The officers' initialdetention of defendant on a subway platform was supported by, at least, reasonablesuspicion. The plainclothes officers identified themselves as police and then brieflyrestrained defendant after they saw him struggling with a woman over a purse as thewoman yelled, "Let go of my bag." As officers detained defendant, the woman took herbag back and returned to a subway car. When one of the officers approached her on thesubway train, she appeared extremely nervous and afraid, and was unwilling to leave thetrain as long as defendant was on the platform. When the woman took her identificationout of a wallet in that bag to show the officer, this, along with the officer's earlierobservations, including the woman having yelled, "Let go of my bag," provided probablecause to arrest defendant. Defendant's alternative explanations for these events arefarfetched, and the police were not required to rule out all hypotheses of innocence (see e.g. People v Lewis, 50AD3d 595 [2008], lv denied 11 NY3d 790 [2008]). There is no merit todefendant's suggestion that the woman's behavior was indicative of criminal behavior onher own part.
The court properly declined to charge third-degree robbery as a lesser includedoffense of first-degree robbery, as there was no reasonable view of the evidence "thatdefendant used any type of force other than the display of what appeared to be a firearm"(People v Santiago, 303 AD2d 321, 321 [1st Dept 2003], lv denied 100NY2d 598 [2003]). However, as the People concede, defendant was entitled tosubmission of third-degree robbery under the count charging second-degree robberypursuant to Penal Law § 160.10 (2) (b). While this error would normallyrequire a new trial on the count at issue, we accept the People's recommendation that thiscount be [*2]dismissed in the interest of judicialeconomy.
Defendant's challenge to the sufficiency of the evidence supporting the element ofphysical injury regarding the remaining second-degree robbery conviction (seePenal Law § 160.10 [2] [a]) is without merit. There is no basis fordisturbing the jury's credibility determinations concerning the victim's description of herlevel of pain (see People v Guidice, 83 NY2d 630, 636 [1994]). The evidencesupports the inference that her injuries caused "more than slight or trivial pain" (People v Chiddick, 8 NY3d445, 447 [2007]). Concur—Gonzalez, P.J., Acosta, DeGrasse, Freedman andRichter, JJ.