| People v Kimbrough |
| 2018 NY Slip Op 02719 [160 AD3d 541] |
| April 19, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Kimbrough, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Kerry Elgarten of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 23, 2015,convicting defendant, after a nonjury trial, of robbery in the second degree, and sentencing him,as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (People v Danielson, 9NY3d 342, 348-349 [2007]). In this robbery of a store, the evidence amply supported afinding that the testifying employee perceived what appeared to be a firearm when defendantplaced his hand under his shirt at his waist and threatened to shoot everyone in the store (seePeople v Baskerville, 60 NY2d 374, 381 [1983]). The record fails to support defendant'sassertion that, before any property was taken, the employee "realized" that defendant did not havea firearm. Instead, the employee merely testified that during the incident there came a time whenhe became unsure whether defendant actually had a firearm. However, a victim need not becertain that a robber was armed to satisfy the display element (see People v Brown, 119 AD3d953, 954 [2d Dept 2014], lv denied 24 NY3d 1118 [2015]; People v Bynum,125 AD2d 207, 209 [1st Dept 1986], affd 70 NY2d 858 [1987]). Moreover, it can bereasonably inferred from the evidence that even after he developed this uncertainty, the employeewas still in fear of possibly being shot at the time defendant stole money from the cashregister.
Defendant did not preserve his additional argument regarding an alleged variance betweenthe indictment and the trial evidence regarding the identity of the person actually robbed, and wedecline to review it in the interest of justice. As an alternative holding, we find it unavailing.Concur—Acosta, P.J., Manzanet-Daniels, Tom, Oing, Singh, JJ.