People v. Small

246 A.D.2d 610, 667 N.Y.S.2d 299, 1998 N.Y. App. Div. LEXIS 378

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered February 6, 1996, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The issue of the legal sufficiency of the evidence has not been preserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The trial court properly denied the defendant’s request to charge petit larceny as a lesser-included offense of robbery in the first degree, since no reasonable view of the evidence would have supported the conclusion that the defendant committed the theft without the use of force (see, CPL 300.50; People v Glover, 57 NY2d 61; People v White, 121 AD2d 762). In this case, there was no rational basis by which the jury could reject the testimony of the People’s witness regarding the defendant’s threat to use a razor blade, yet accept that the defendant committed the theft (see, People v Blim, 63 NY2d 718).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., Altman, Florio and McGinity, JJ., concur.