| People v Sullivan |
| 2014 NY Slip Op 05062 [119 AD3d 1335] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York,Respondent, v Darren Sullivan, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mark C. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered March 29, 2012. The judgment convicted defendant, upon a jury verdict, ofrobbery in the third degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the third degree (Penal Law § 160.05) and petitlarceny (§ 155.25). Defendant contends that the evidence established that heused force to escape from store security personnel rather than for the purpose of retainingstolen property, and thus the evidence is legally insufficient to support his robberyconviction. We reject that contention. The People presented evidence establishing thatdefendant took items into a fitting room and left the store without paying for anymerchandise, holding a bag that appeared larger than it appeared when he had entered thestore. When confronted by store security personnel, defendant threatened the use of forceand escaped from the mall. Viewing the evidence in the light most favorable to thePeople, we conclude that "permissible inferences could lead a rational person to theconclusion reached by the jury that defendant used force or at least the threat of force inorder to retain control of the [property,] thus satisfying the proof and burdenrequirements for robbery in the third degree" (People v Bynum, 68 AD3d 1348, 1349 [2009], lvdenied 14 NY3d 798 [2010]; see People v Gordon, 23 NY3d 643, 650-651 [2014]).
We further reject defendant's contention that the verdict is against the weight of theevidence. "Given that defendant was in possession of the stolen property while he wasengaged in such use of force, the jury was entitled to infer that his purpose in using forcewas to retain control of the stolen property, not merely to escape" (People v Stone, 45 AD3d1270, 1271 [2007], lv denied 9 NY3d 1039 [2008] [internal quotation marksomitted]). Thus, viewing the evidence in light of the elements of the crime as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Contrary to defendant's contention, " '[t]he evidence presented at trial. . . consisted of [*2]both circumstantial anddirect evidence, and thus a circumstantial evidence charge was not required' " (People v Smith, 90 AD3d1565, 1566 [2011], lv denied 18 NY3d 998 [2012]; see People vDaddona, 81 NY2d 990, 992 [1993]; People v Stanford, 87 AD3d 1367, 1369 [2011], lvdenied 18 NY3d 886 [2012]).
Contrary to defendant's further contention, the prosecutor did not suggest onsummation that defendant had the burden of proof but, even assuming, arguendo, that theprosecutor did so, we conclude that the comment at issue "w[as] not so . . .egregious as to deny defendant a fair trial" (People v Rogers, 103 AD3d 1150, 1153-1154 [2013],lv denied 21 NY3d 946 [2013]). Indeed, we note in particular that "the courtclearly and unequivocally instructed the jury that the burden of proof on all issuesremained with the prosecution" (People v Pepe, 259 AD2d 949, 950 [1999],lv denied 93 NY2d 1024 [1999]; see People v Page, 105 AD3d 1380, 1382 [2013]).Defendant failed to preserve for our review the remainder of his contention concerningalleged prosecutorial misconduct inasmuch as he failed to object to the alleged additionalinstances of misconduct (see CPL 470.05 [2]; People v Lane, 106 AD3d 1478, 1480 [2013], lv denied21 NY3d 1043 [2013]) and, in any event, we conclude that "[a]ny improprieties werenot so pervasive or egregious as to deprive defendant of a fair trial" (People v Jackson, 108 AD3d1079, 1080 [2013], lv denied 22 NY3d 997 [2013] [internal quotation marksomitted]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Smith,J.P., Peradotto, Sconiers, Whalen and DeJoseph, JJ.