People v. Barbeau

Appellate Division of the Supreme Court of New York

People v. Barbeau

198 A.D.2d 855, 604 N.Y.S.2d 425, 1993 N.Y. App. Div. LEXIS 11486

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 1993

StatusPublished

This text of 198 A.D.2d 855 (People v. Barbeau) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barbeau, 198 A.D.2d 855, 604 N.Y.S.2d 425, 1993 N.Y. App. Div. LEXIS 11486 (N.Y. Ct. App. 1993).

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Opinion

—Judgment unanimously affirmed. Memorandum: The proof established that defendant, while displaying what appeared to be a handgun, took a portable radio from a shopping mall security guard and then discarded the radio when pursued by a police officer. That constituted legally sufficient evidence that defen[856]*856dant intended to deprive the guard of the radio and to appropriate it to himself (see, People v Sturkey, 161 AD2d 101, revd on other grounds 77 NY2d 979). Further, there is no merit to defendant’s contention that the security guard lacked a superior possessory interest in the beer bottle that defendant took from the guard. That beer bottle had been seized from defendant’s companion in the course of an investigation and arrest of the companion for violation of the open container ordinance of the City of Batavia. A private person may arrest another person for any offense committed in his presence (see, CPL 140.30 [1]) and thus, the guard had a superior right to possession of that bottle as contraband. The court imposed an authorized sentence upon defendant, a second felony offender, and that sentence is not harsh or excessive. (Appeal from Judgment of Genesee County Court, Morton, J. —Robbery, 2nd Degree.) Present — Callahan, J. P., Pine, Balio, Doerr and Boomer, JJ.

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—Judgment unanimously affirmed. Memorandum: The proof established that defendant, while displaying what appeared to be a handgun, took a portable radio from a shopping mall security guard and then discarded the radio when pursued by a police officer. That constituted legally sufficient evidence that defen[856]*856dant intended to deprive the guard of the radio and to appropriate it to himself (see, People v Sturkey, 161 AD2d 101, revd on other grounds 77 NY2d 979). Further, there is no merit to defendant’s contention that the security guard lacked a superior possessory interest in the beer bottle that defendant took from the guard. That beer bottle had been seized from defendant’s companion in the course of an investigation and arrest of the companion for violation of the open container ordinance of the City of Batavia. A private person may arrest another person for any offense committed in his presence (see, CPL 140.30 [1]) and thus, the guard had a superior right to possession of that bottle as contraband. The court imposed an authorized sentence upon defendant, a second felony offender, and that sentence is not harsh or excessive. (Appeal from Judgment of Genesee County Court, Morton, J. —Robbery, 2nd Degree.) Present — Callahan, J. P., Pine, Balio, Doerr and Boomer, JJ.

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Bluebook (online)

198 A.D.2d 855, 604 N.Y.S.2d 425, 1993 N.Y. App. Div. LEXIS 11486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barbeau-nyappdiv-1993.

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