| People v Cloonan |
| 2018 NY Slip Op 07366 [166 AD3d 1063] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Cloonan, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedFebruary 2, 2016 in Albany County, upon a verdict convicting defendant of the crimes ofrobbery in the second degree, grand larceny in the third degree and criminal possessionof stolen property in the third degree.
Following a jury trial, defendant was convicted of robbery in the second degree,grand larceny in the third degree and criminal possession of stolen property in the thirddegree in connection with a robbery at an M&T bank in the City of Albany. He wassentenced, as a second felony offender, to an aggregate prison term of 15 years with fiveyears of postrelease supervision. Defendant now appeals and we affirm.
Defendant argues that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence because the People failed to establish that hedisplayed what appeared to be a weapon during the robbery. At trial, Nicole Sparks, anassistant branch manager at the bank, testified that, while she was working as a teller inthe lobby of the bank, "somebody came in and . . . handed [her] a notesaying that, this was a robbery, [he] needed $5,000 . . . in hundreds and[fifties], [she] had two minutes to give it to him and he showed [her] what appeared to bea weapon, a gun." Sparks testified that the object that appeared to be a gun had a long,black, metal barrel and that the individual was holding it close to his chest. Whiletestifying, Sparks identified defendant as the perpetrator of the robbery and testified thathe left the bank with $11,930 in cash, including money that Sparks gave to him from thebank's "bait pack"—currency that the bank can track using logged serialnumbers.
During a 911 call, which was admitted into evidence, Sparks can be heard telling theoperator that defendant displayed what appeared to be a weapon with a long barrel.Additionally, Alfred Martin, a detective, testified that he was working when he receivedinformation about the bank robbery, which had occurred a couple of blocks to the northof where he was situated. [*2]Martin testified that hereviewed photographic stills from surveillance video that captured the robbery and wasable to observe the perpetrator's face and clothing. While Martin was stationed at anintersection in Albany, he observed an individual walking faster than normal andrecognized him as wearing much of the same distinctive clothing and having the samefeatures as the perpetrator. After spotting this individual, Martin exited his police vehicleand directed the individual to stop, at which point the individual picked up his pace.Martin testified that, when he grabbed this individual's hand, the individual pulled ablack handgun from his waist band, which turned out to be a BB gun. Martin explainedthat, at first sight, the weapon looked like a real handgun. While doing a pat-down searchof the individual, Martin spotted a large amount of currency in his pants' pocket and inhis socks and that, when the individual exited the police car at the police station, severalbills fell out of his left front pocket onto the floor of the police car. Martin identified thatindividual as defendant and confirmed that approximately $11,537 was recovered fromhis person, including 19 bills that matched the serial numbers of the bait money given bySparks.
When viewing this evidence in the light most favorable to the People, there waslegally sufficient evidence that defendant displayed what appeared to be a firearm duringthe robbery. Sparks' testimony to this effect, combined with her reporting this fact on the911 call shortly after the robbery and the fact that a BB gun was found on defendant'sperson during his arrest, could lead a rational person to conclude that defendantdisplayed a firearm (see Peoplev Kimbrough, 160 AD3d 541, 541-542 [2018], lv denied 31 NY3d 1150[2018]; People v Colon, 116AD3d 1234, 1237 [2014], lv denied 24 NY3d 959 [2014]; cf. People v Thomas, 12 AD3d935, 936 [2004], lv denied 4 NY3d 749 [2004]). As to the weight of theevidence, although the surveillance video and photographic stills of the incident do notreadily portray defendant displaying a firearm, the testimony at trial established that thereason for this was that the surveillance video captured only one image every fewseconds and that there were gaps in time between each image. Under thesecircumstances—particularly when considering that Sparks told the 911 operatorthat defendant had a gun shortly after the robbery and remained consistent in this respectat trial, and defendant was found with a BB gun on his person when he wasarrested—a different verdict would have been unreasonable and, as such,defendant's claim that the verdict was against the weight of the evidence is rejectedoutright (see People vWheeler, 159 AD3d 1138, 1140 [2018], lv denied 31 NY3d 1123[2018]).
Defendant also argues that, given the conflicting proof about whether he displayed afirearm during the robbery, a reasonable view of the evidence supported a finding that hecommitted robbery in the third degree, but not robbery in the second degree, and, as such,the lesser included charge of robbery in the third degree should have been given. Theparty seeking a lesser included offense charge "must demonstrate, first, 'that it isimpossible to commit the greater crime without concomitantly committing the lesseroffense by the same conduct' and, second, that there is 'a reasonable view of the evidenceto support a finding that the defendant committed the lesser offense but not thegreater' " (People vDefilippo, 152 AD3d 860, 861 [2017], quoting People v Van Norstrand,85 NY2d 131, 135 [1995]; see CPL 1.20 [37]; 300.50 [1], [2]). Inasmuch as thePeople concede that robbery in the third degree is a lesser included offense of robbery inthe second degree, the question is whether any reasonable view of the evidence wouldsupport a finding that defendant committed a robbery but did not display what appearedto be a firearm (see People vRumrill, 40 AD3d 1273, 1275 [2007], lv denied 9 NY3d 926 [2007];compare Penal Law §§ 160.10, and 160.15,with 160.05). Given Sparks' testimony that defendant displayed a firearm duringthe robbery, her report of same during the 911 call immediately after the robbery anddefendant having a BB gun on his person when he was arrested, there is no reasonableview of the evidence that defendant did not display what appeared to be a firearm. Assuch, Supreme Court properly refused to charge the jury on the lesser included offense ofrobbery in the third degree (seePeople v Grayson, 138 AD3d 1250, 1252 [2016], lv denied 27 NY3d1132 [2016]; People v Rumrill, 40 AD3d at 1275).
Defendant finally argues that his prison sentence is harsh and excessive. Althoughthe maximum allowable sentence for a second felony offender was imposed (seePenal Law §§ 70.06 [6] [b]; 160.10), Supreme Court consideredappropriate factors, including defendant's lengthy [*3]criminal history, both within and outside of NewYork—much of which relates to crimes of theft—the violent nature of thecrime and defendant's failure to accept responsibility for the subject crimes duringsentencing. Our review does not reveal any extraordinary circumstances or abuse ofdiscretion warranting a reduction of the sentence (see People v Coley, 129 AD3d 1327, 1330 [2015], lvdenied 26 NY3d 927 [2015]; People v Griffin, 122 AD3d 1068, 1071 [2014], lvdenied 25 NY3d 1164 [2015]). Furthermore, while there is a six-year discrepancybetween defendant's ultimate sentence after trial and that proposed in a plea offer,nothing in the record suggests that the imposition of the maximum term of imprisonmentwas vindictive or was punishment for defendant's assertion of his constitutional right totrial (see People vAnderson, 149 AD3d 1407, 1416 [2017], lv denied 30 NY3d 947[2017]; People v Molina, 73AD3d 1292, 1293 [2010], lv denied 15 NY3d 807 [2010]).
Garry, P.J., Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.