People v. Robinson

261 A.D.2d 888, 690 N.Y.S.2d 357, 1999 N.Y. App. Div. LEXIS 4935

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the third degree (Penal Law § 160.05). We reject defendant’s contention that Supreme Court erred in failing to instruct the jury that defendant must have a “conscious objective” to use force to prevent any resistance to the retention of the stolen property (see, People v Miller, 87 NY2d 211, 217). The court instructed the jury that the threat of physical force must be used for the purpose of “[p] re venting or overcoming resistance to * * * the retention” of the property (Penal Law § 160.00 [1]), thus adequately conveying to the jury the proper mens rea for the crime (see, People v Smith, 79 NY2d 309, 312; People v McKinney, 195 AD2d 1003,1004, lv denied 82 NY2d 757; People v Wilkins, 191 AD2d 215, lv denied 81 NY2d 978). Contrary to defendant’s contention, the court’s supplemental instruction adequately addressed the jury’s question concerning the threat of force (see, People v Brown, 81 AD2d 674, 675). The court properly denied defendant’s motion to dismiss at the close of the People’s case. A rational jury could have found beyond a reasonable doubt that the evidence, viewed in the light most favorable to the prosecution (see, People v Smith, supra, at 314), established that defendant threatened the grocery store employees with the immediate use of physical force in an effort to prevent the employees from recovering the stolen property (see, People v Smith, 233 AD2d 124,124-125, lv denied 89 NY2d 1101). (Appeal from Judgment of Supreme Court, Monroe County, Sheridan, J. — Robbery, 3rd Degree.) Present — Den-man, P. J., Hayes, Wisner, Hurlbutt and Callahan, JJ.