Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The order of the Appellate Division should be modified by reinstating defendant's conviction for first-degree robbery and remitting to that court for consideration of the facts (see CPL 470.25  [d]; 470.40  [b]), and, as so modified, affirmed.
A grand jury returned a single indictment charging defendant Alfred Ford with first-degree robbery and lesser offenses related to two successive robberies in May 2004 in elevators of residential buildings on Park Avenue in Manhattan. Before trial, defendant unsuccessfully sought to sever the trials of the two crimes on the ground that the proof of his identity in the second robbery was stronger than that in the first, and the jury would thus be unable to consider the proof of each incident separately. Ultimately, defendant was convicted of two counts of first-degree robbery, one with respect to each incident.
On appeal, defendant contended that Penal Law § 160.15 (3)*fn1 requires the People to establish defendant's "actual possession" of a dangerous instrument, and there was insufficient evidence that he had actually possessed a knife during one of the robberies. Second, he argued that the trial court erroneously denied his severance motion. The People responded that, viewing the evidence in light of the unobjected-to instruction which did not require the jury to find that defendant actually possessed the knife the evidence of first-degree robbery was legally sufficient. Alternatively, the People argued that the evidence was legally sufficient to establish that defendant actually possessed a knife. As for severance, the People took the position that joinder was proper because there was no material variance in the quantity of proof relating to each crime, and the jury would be able to consider the evidence as to each crime separately.
The Appellate Division modified the judgment of conviction, reduced the defendant's conviction for first-degree robbery to third-degree robbery, and remanded the case to Supreme Court for resentencing on that count. The court concluded that although the charge as given alerted the jury to the "actual possession" element of the crime, the evidence of actual possession was legally insufficient. Further, the Appellate Division rejected defendant's severance claim. A Judge of this Court granted both the People and defendant leave to appeal.
In its charge to the jury, the trial court explained that, to find defendant guilty of first-degree robbery, the jury would have to find
"[f]irst, that on May 31, 2004, . . . the defendant . . . forcibly stole property from [the victim]; second, that in the course of the commission of the crime or in the immediate flight therefrom, the defendant used or threatened the immediate use of a knife; [and] third, that under the circumstances the knife was a dangerous instrument."
The Appellate Division concluded that this charge adequately alerted the jury to the "actual possession" element of the crime, principally by virtue of the single reference to "'the knife,' rather than a hypothetical knife" (People v Ford, 44 AD3d 515, 516 (1st Dept 2007]). We cannot agree. More than a subtle verbal clue was necessary for the jury to be put on notice of its obligation to decide whether defendant actually possessed a knife; it is not enough for an instruction merely to imply the elements of a crime. Simply put, the charge in this case did not use the term "actual possession," or in any other way convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the "actual possession" requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law (see Pena, 50 NY2d at 407; see generally People v Johnson, 70 NY2d 819 ).
Because there was no objection to the charge, however, the legal sufficiency of defendant's conviction must be viewed in light of the court's charge as given without exception (see People v Sala, 95 NY2d 254 ; People v Dekle, 56 NY2d 835 ). Viewed as such, the evidence was legally sufficient to establish defendant's guilt of first-degree robbery. During the course of the robbery, defendant stated, "I got a knife," while simultaneously moving his hand toward his pants pocket. These acts, considered together, provide legally sufficient evidence to establish that defendant "used or threatened the immediate use" of a knife in the course of the robbery, as the trial court charged*fn2. As a result, defendant's conviction for first-degree robbery should be reinstated.
Our recent decision in People v Jean-Baptiste (__ NY3d __ ) does not warrant a different result. There, defendant's motion to dismiss for legal insufficiency which related to the elements of the crime apprised the trial judge of any potential error in the charge. The judge in responding made a clear disposition on the law; he incorporated into the charge what he had already told defense counsel reflected the law. Under these circumstances, an objection to the charge itself would have been superfluous and futile, and would not have advanced the sound policy reasons underlying the preservation requirement (see People v Hawkins, __ NY3d __ ).
Here, by contrast, the legal sufficiency objection was based on the perceived inadequacy of the proof, not on an interpretation of an element of the offense. The objection to sufficiency was merely "denied"; the trial judge did not clearly make a distinction between whether he was denying the motion because the evidence was insufficient to establish possession, or because he considered proof of actual possession to be unnecessary. As a result, defense counsel was required to object to the jury charge which, as already noted, did not instruct the jurors that they had to find that defendant actually possessed the knife in order to convict him of first-degree robbery in order to avoid having the sufficiency of the evidence supporting his conviction evaluated in light of the charge as given.
Finally, we reject defendant's claim that the trial court erroneously denied his severance motion. Defendant failed to establish good cause for severance under section 200.20 (3) (a) of the Criminal Procedure Law because there was no material variance in the quantity of proof for the separate incidents. Moreover, the evidence as to the two crimes was presented separately and was readily capable of being segregated in the minds of the jury. The incidents ...