People v. Jiminez

227 A.D.2d 170, 642 N.Y.S.2d 16, 1996 N.Y. App. Div. LEXIS 4833

Opinion

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered April 22, 1993, convicting defendant, after a jury trial, of burglary in the first degree and two counts of robbery in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 81/2 to 17 years, unanimously affirmed.

Defendant’s guilt was proven beyond a reasonable doubt by overwhelming evidence, and the verdict was not against the weight of that evidence (People v Bleakley, 69 NY2d 490, 495). Submission of lesser included offenses on the theory that defendant might not have displayed a gun was properly denied since there was no rational basis to reject the consistent testimony of the victims that a gun had been displayed while otherwise crediting their testimony (CPL 300.50; People v Glover, 57 NY2d 61). Review of defendant’s claim that the jury at the first trial, by acquitting him of a charge of impersonating an officer, precluded any evidentiary use of such a fact at the second trial, is precluded by a record that is ambiguous as to what the first jury actually determined (see, People v Goodman, 69 NY2d 32, 40-41; People v Kinchen, 60 NY2d 772). Concerning the suppression issue, the police officer had reasonable suspicion that defendant had committed a crime when he was directed to the fleeing defendant by a crowd, some of whom were in pursuit, and defendant, upon seeing the officer and being asked to stop, only accelerated his flight (see, People v Hammonds, 215 AD2d 166, lv denied 86 NY2d 795). The packet of cash in defendant’s rear pants pocket, which was uncovered only during a protective pat down and then immediately returned to the pocket, was not seized until after the identification that provided probable cause (supra). Defendant’s remaining contentions are unpreserved and without merit. Concur— Ellerin, J. P., Wallach, Ross, Nardelli and Tom, JJ.