People v. Ruiz

216 A.D.2d 63, 628 N.Y.S.2d 80, 1995 N.Y. App. Div. LEXIS 6302

Opinions

Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered July 11, 1992, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 4 to 12 years, is affirmed.

The trial court did not err in refusing to charge robbery in the third degree as a lesser included offense of robbery in the first degree since there was no reasonable view of the evidence that defendant committed the lesser offense but not the greater (see, People v Glover, 57 NY2d 61, 63-64). The complainant’s testimony at trial that defendant hid his hand inside his winter coat and threatened that he was going to shoot the complainant if he did not give defendant his money clearly established that defendant displayed what appeared to be a firearm for purposes of Penal Law § 160.15 (4) (People v Lopez, 73 NY2d 214). Despite defendant’s testimony that he was given the money as repayment of a loan, and no robbery took place, the jury could not have rationally concluded that defendant committed the lesser crime but not the greater; rather, they would have simply acquitted the defendant (People v Scarborough, 49 NY2d 364). Where, as here, "there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted” (supra, at 369-370).

We do not perceive any abuse of discretion in the sentence imposed. Concur—Ross, Asch and Nardelli, JJ.