People v. Spry

232 A.D.2d 232, 648 N.Y.S.2d 86, 1996 N.Y. App. Div. LEXIS 10014

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered February 16, 1995, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him to concurrent terms of l1/2 to 41/2 years, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

Defendant’s claims are unpreserved, and in any event, without merit. Evidence that defendant and two companions followed the complainant onto an elevator, where, once alone, either defendant or the codefendant pushed the complainant into the third, unapprehended man, who punched the complainant in the mouth and took money from his pocket as defendant and the codefendant stood by menacingly, with their hands in their pockets, in a manner suggesting to the victim the presence of weapons, and that defendant and the codefendant kicked over the complainant’s bags as the third man held the elevator door and the three exited, was legally sufficient to prove that defendant shared the intent of the third man to deprive the complainant of his money (see, People v Davis, 186 AD2d 437, lv denied 81 NY2d 787). The testimony that the complainant’s lip bled a great deal and that his mouth and lip were swollen and painful for several days was legally sufficient to prove a physical injury within the meaning of Penal Law § 160.10 (2) (a) (see, People v Pope, 174 AD2d 319, lv denied 78 NY2d 1079). We further find that the verdict was not against the weight of the evidence. Concur—Sullivan, J. P., Ellerin, Ross, Williams and Andrias, JJ.