| People v Grayson |
| 2016 NY Slip Op 02870 [138 AD3d 1250] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDon-Lee Grayson, Appellant. |
Mitch Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 7, 2014, upon a verdict convicting defendant of the crime of robberyin the first degree.
Following a jury trial, defendant was convicted of robbery in the first degree andsentenced to a prison term of 10 years, followed by five years of postrelease supervision.He was also ordered to pay restitution in the amount of $2,095, along with a 5%surcharge. Defendant now appeals.
Defendant argues that County Court should have granted his request to charge thejury on the lesser included offense of robbery in the third degree. To establish entitlementto a lesser included offense charge, a defendant must demonstrate that, "in allcircumstances, . . . it is impossible to commit the greater crime withoutconcomitantly, by the same conduct, committing the lesser offense" and, secondarily, that"there is a reasonable view of the evidence . . . that would support a findingthat he [or she] committed the lesser offense but not the greater" (People vGlover, 57 NY2d 61, 63 [1982]; see CPL 1.20 [37]; 300.50 [1]; People v Davis, 14 NY3d20, 22-23 [2009]). Here, the People properly concede that it is impossible to commitrobbery in the first degree without also committing robbery in the third degree(see Penal Law §§ 160.05, 160.15 [4]) and, thus, the partiesdisagree solely as to whether the second prong of the inquiry was satisfied.
In evaluating whether there is a reasonable view of the evidence that would support afinding that a defendant committed only the lesser offense, we must view the evidence inthe [*2]light most favorable to the defendant (see People v Rivera, 23 NY3d112, 120-121 [2014]; People v Martin, 59 NY2d 704, 705 [1983]; Peoplev Green, 56 NY2d 427, 434 [1982]). A lesser included offense charge may not begiven unless " 'there is . . . some identifiable, rational basis onwhich the jury could reject a portion of the prosecution's case which is indispensable toestablishment of the higher crime and yet accept so much of the proof as would establishthe lesser crime' " (People v Rivera, 23 NY3d at 121, quoting Peoplev Scarborough, 49 NY2d 364, 369-370 [1980]; accord People v Lora, 85 AD3d 487, 492 [2011], appealdismissed 18 NY3d 829 [2011]). As relevant here, a conviction for robbery in thethird degree requires proof that the defendant "forcibly st[ole] property" (Penal Law§ 160.05), while a conviction for robbery in the first degree requires proofthat the defendant "forcibly st[ole] property" and, in the course of doing so,"[d]isplay[ed] what appear[ed] to be a . . . firearm" (Penal Law§ 160.15 [4]). To satisfy the display requirement, all that is required is a"show[ing] that the defendant consciously displayed something that could reasonably beperceived as a firearm, with the intent of forcibly taking property, and that the victimactually perceived the display" (People v Lopez, 73 NY2d 214, 220 [1989];see People v Baskerville, 60 NY2d 374, 381 [1983]; People v Colon, 116 AD3d1234, 1236 [2014], lv denied 24 NY3d 959 [2014]; CJI2d[NY] Penal Law§ 160.15 [4]). "[T]he object displayed need not closely resemble a firearmor bear a distinctive shape" and "even a hand consciously concealed in clothing maysuffice, if under all the circumstances the defendant's conduct could reasonably lead thevictim to believe that a gun [was] being used during the robbery" (People vLopez, 73 NY2d at 220; see People v Colon, 116 AD3d at 1236; People v Welsh, 80 AD3d456, 456 [2011], lv denied 16 NY3d 864 [2011]).
At trial, the bank teller testified that defendant entered the bank wearing a "ski mask"and a "pulled-down, dark ball cap," approached her teller station and slid her a notedemanding five $100 bills and directing her "not to do anything stupid and that there wasa gun." She stated that defendant immediately placed his hands in his pockets and that,although she never saw a gun, she believed defendant to have one because, "[t]hroughoutthe robbery, . . . both of his hands were in his pocket[s] pushed forward."The bank's comprehensive surveillance footage corroborated the victim's testimony thatdefendant slid her a note and then put both of his hands in his pockets. Viewing theevidence in the light most favorable to defendant, there is no reasonable view of theevidence that could lead to the conclusion that it was unreasonable for the bank teller tobelieve that defendant had a gun, given his conduct of concealing his face during therobbery, indicating by note that he had a gun and thereafter consciously placing his handsin his pockets (see People vJames, 11 NY3d 886, 887-888 [2008]; People v Ruiz, 216 AD2d 63,63-64 [1995], affd 87 NY2d 1027 [1996]). Accordingly, County Court did noterr in refusing to charge the jury on the lesser included offense of robbery in the thirddegree.
We also disagree with defendant's contention that County Court incorrectlyinstructed the jury that, if the People proved beyond a reasonable doubt that defendantwas in exclusive possession of money recently stolen during a robbery, then it waspermitted, but not required, to infer that defendant's possession resulted from hisparticipation in the robbery. Here, the evidence revealed that the bank teller included ared-dye pack in the envelope of money that she gave to defendant, that defendant visiteda bank roughly two weeks after the robbery and attempted to exchange red-dyed moneyfor "clean" money, that defendant paid his rent with "red-tinted" $50 bills two weeksafter he was unable to exchange the dyed money and that a particular red dye and tear gascombination used exclusively in bank dye packs was found on those $50 bills. Thisevidence could justify an inference that defendant was guilty of the robbery and, contraryto defendant's assertions, was not so far removed in time or otherwise tenuous so as torender the recent and exclusive possession charge improper (see generally People vBaskerville, 60 NY2d at 383; People v Galbo, 218 NY 283, 291[1916]).
Therefore, County Court acted within its discretion in giving the exclusivepossession of property [*3]recently stolen charge to thejury over defendant's objection.
Peters, P.J., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.