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People v. Nunez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MARCOS NUNEZ, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered March 13, 2007, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree (two counts) and burglary in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 30 years, unanimously affirmed.

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.

Mazzarelli, J.P., Friedman, Moskowitz, Acosta, JJ.

4936/06

The court properly denied defendant's suppression motion. There was probable cause for defendant's arrest based on evidence that he had pawned property taken in a robbery (see People v Radoncic, 239 AD2d 176, 179 [1997], lv denied 90 NY2d 987 [1997]). Defendant's recent, exclusive possession of the property warranted the inference that he was guilty of either robbery or criminal possession of stolen property (see People v Galbo, 218 NY 283, 290 [1916]), and the possibility that he might have innocently acquired the property did not negate probable cause, which does not require proof beyond a reasonable doubt (see People v Tinort, 272 AD2d 206, 207 [2000], lv denied 95 NY2d 872 [2000]). The record also supports the court's finding that the lineup was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).

The evidence was sufficient to establish the physical injury element of the second-degree robbery convictions. The jury was entitled to credit the victims' descriptions of their injuries (see People v Guidice, 83 NY2d 630, 636 [1994]), and to draw the conclusion that these injuries were more than mere "petty slaps, shoves, kicks and the like" (Matter of Philip A., 49 NY2d 198, 200 [1980]; see also People v Chiddick, 8 NY3d 445, 447 [2007]).

The People's rebuttal evidence clearly tended to disprove defendant's case (see e.g. People v Payne, 235 AD2d 235 [1997], lv denied 89 NY2d 1039 [1997]), and defendant's arguments to the contrary are without merit. We are aware of no rule requiring the People to anticipate evidence a defendant might introduce and "rebut" it in advance on their direct case. In any event, the testimony presented on rebuttal was admissible as a matter of discretion (see CPL 260.30[7]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090402

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