People v. Johnson

171 A.D.2d 532, 567 N.Y.S.2d 430, 1991 N.Y. App. Div. LEXIS 3698

Opinion

Judgment, Supreme Court, New York County (Stanley Parness, J., at suppression hearing; Richard B. Lowe, J., at jury trial and sentence), rendered September 12, 1989, convicting defendant of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the fourth degree, and sentencing him to concurrent indeterminate prison terms of 11 to 22 years, 7 Vi to 15 years, and 2 to 4 years, respectively, unanimously affirmed.

On January 20, 1989, Debra Wilson was crossing Eighth Avenue at West 20th Street in Manhattan when she turned around and saw a man running toward her, holding a knife. When she dropped one of the bags that she was holding, the man picked it up and got into the passenger side of a white car, which was being driven by another individual. Ms. Wilson memorized the license plate number, which matched that of a stolen vehicle. Approximately lVi hours after the robbery, the police arrested defendant and George Fernandez inside the vehicle. Inside the vehicle was personal property belonging to Ms. Wilson.

The court’s use of a hypothetical with facts "strikingly similar” to the facts in the present case may have been error (People v Hommel, 41 NY2d 427, 430). However, any prejudice was adequately dissipated by the subsequent curative instruction and alternative hypothetical.

There was substantial compliance with People v Tucker (77 NY2d 861, affg 153 AD2d 164; see also, People v Morales, 159 AD2d 86). The court did not advocate jury note-taking and explained the problems which arise if notes are taken.

Defendant’s sentence was neither excessive for unduly harsh. Defendant had several prior robbery arrests, many involving violence or deadly weapons. In view of the particular circumstances in this case, the sentence did not constitute an abuse of discretion. (People v Farrar, 52 NY2d 302.)

We have reviewed defendant’s remaining contentions and find them to be unpreserved for appellate review. Concur— Murphy, P. J., Kupferman, Milonas, Ellerin and Rubin, JJ.