People v. Davis

47 A.D.3d 506, 849 N.Y.S.2d 257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2008
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 2, 2006, convicting defendant Davis, after a jury trial, of robbery in the first and second degrees and bail jumping in the second degree, and sentencing him to an aggregate term of six years, unanimously affirmed. Judgment, same court and Justice, rendered May 23, 2006, convicting defendant Flores, after a jury trial, of robbery in the first and second degrees, and sentencing her to an aggregate term of five years, unanimously affirmed. Judgment, same court and Justice, rendered June 13, 2006, convicting defendant James, after a jury trial, of robbery in the first and second degrees, and sentencing him to an aggregate term of eight years, affirmed.

To the extent that defendants Davis and Flores are raising legal sufficiency claims, those claims are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. We also find that none of the verdicts was against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).

Defendant James was not entitled to have the court submit third-degree robbery to the jury as a lesser included offense of first-degree robbery, since there was no reasonable view of the evidence to support that charge (see People v Negron, 91 NY2d 788 [1998]; People v Whitfield, 287 AD2d 393 [2001], lv denied 97 NY2d 689 [2001]). The victim was certain that the robbers displayed what appeared to be a firearm, and there was no reason for the jury to selectively discredit only that portion of his testimony. Although an accomplice who testified for the People stated that, while standing across the street from the robbery and acting as a lookout, he never saw anyone display a firearm, this was insufficient to create a reasonable view warranting submission of the lesser offense. Moreover, the accomplice testified that he heard defendant Davis make a verbal threat to use a firearm against the victim.

Similarly, the court properly denied Flores’s request for an instruction on the affirmative defense contained in Penal Law § 160.15 (4). “A defendant is entitled to a charge on the affirmative defense to robbery in the first degree when there is presented sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon capable of producing death or other serious physical injury” (People v Gilliard, 72 NY2d 877, 878 [1988]). Under the circumstances under which the crime was committed, the fact that the police were unable to recover a weapon did not, either by itself or when taken together with the other evidence, warrant submission of that defense.

We find no basis to reduce any of the sentences.

We have considered and rejected defendants’ remaining claims. Concur—Marlow, Williams, Buckley and Malone, JJ.