| People v Moye |
| 2017 NY Slip Op 07319 [154 AD3d 546] |
| October 19, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Arnold Moye, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered November10, 2015, convicting defendant, after a jury trial, of robbery in the first degree, and sentencinghim, as a second violent felony offender, to a term of 11 years, with five years' postreleasesupervision, unanimously affirmed.
Viewed as a whole, including the supplemental instructions, we find that the court'sinstructions conveyed the correct standard on the crime of first-degree robbery, including theelement of the threatened use of a dangerous instrument (see Penal Law§ 160.15 [3]; People v Ladd, 89 NY2d 893, 895-896 [1996]; see alsoPeople v Melendez, 242 AD2d 493, 494 [1st Dept 1997]). The court properly explained thatdisplay of an instrument alone is not enough, and that display of the instrument must beaccompanied by circumstances that convey a threat of immediate use (see People v Pena,50 NY2d 400, 407 n 2 [1980], cert denied 449 US 1087 [1981]; People v Sharma, 112 AD3d 494,495 [1st Dept 2013], lv denied 23 NY3d 1025 [2014]).
The positioning of a court officer behind defendant when he testified was minimally intrusiveand did not deprive defendant of a fair trial (see People v Gamble, 18 NY3d 386, 397 [2012]). In any event, ifthere was error involving the court's decision on courtroom security, it was harmless given theoverwhelming evidence of guilt (seePeople v Clyde, 18 NY3d 145, 153-154 [2011], cert denied 566 US 944 [2012];People v Lucas, 131 AD3d 875,876 [1st Dept 2015], lv denied 26 NY3d 1090 [2015]).
We perceive no basis for reducing the sentence. Concur—Acosta, P.J., Friedman,Webber, Oing and Moulton, JJ.