| People v Womack |
| 2017 NY Slip Op 04996 [151 AD3d 1852] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Andrew B.Womack, Also Known as Worm, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered May30, 2014. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree,grand larceny in the fourth degree, petit larceny, endangering the welfare of a child (two counts),assault in the third degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, robbery in the third degree (Penal Law § 160.05), arising from an incidentinvolving the taking of property from his girlfriend. Initially, we note that defendant's challengesto the sufficiency of the evidence regarding the taking of property in an incident occurring at 9:00a.m. are moot, inasmuch as defendant was acquitted of the count of the indictment that chargedhim with robbery at that time. Furthermore, defendant's challenges to the sufficiency of theevidence with respect to the counts of which he was convicted are not preserved for our review,inasmuch as his motion for a trial order of dismissal was not " 'specificallydirected' " at the grounds now raised on appeal (People v Gray, 86 NY2d 10, 19[1995]).
In any event, defendant's challenges are without merit. We conclude that the evidence islegally sufficient to establish that he used physical force for the purpose of retaining the property"immediately after" he had stolen it (Penal Law § 160.00 [1]; see People v Gosier, 35 AD3d1241, 1241 [2006], lv denied 8 NY3d 984 [2007]; People v Williams, 12 AD3d 317,318 [2004], lv denied 4 NY3d 749 [2004]; see generally People v Carrel, 99NY2d 546, 547 [2002]), and thus the conviction concerning the robbery occurring at 11:00 a.m.is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Furthermore, "there is [a] valid line of reasoning and permissible inferenceswhich could lead a rational person" to conclude that the victim sustained a physical injury duringthe incident (id. at 495; seePeople v Lewis, 129 AD3d 1546, 1547-1548 [2015], lv denied 26 NY3d 969[2015]; People v Carson, 126 AD3d996, 997 [2015], lv denied 25 NY3d 1161 [2015]), and thus the conviction of assaultin the third degree is supported by legally sufficient evidence (see generally Bleakley, 69NY2d at 495). Finally, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Present—Whalen, P.J., Smith,Carni, Curran and Scudder, JJ.