Upon remittur from the Court of Appeals (11 NY3d 875 ) for consideration of the facts, judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 16, 2005, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree (two counts) and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to an aggregate term of 10 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.
Gonzalez, P.J., Andrias, Nardelli, Buckley, JJ.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 ), the verdict was not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 ). The complainant gave unrefuted testimony that he was in an elevator with defendant, who demanded $20 and stated, "I got a knife," while simultaneously moving his hand toward his pants pocket. Defendant then placed the complainant in a headlock and repeatedly punched him in his face, jaw and temple. After the incident, the complainant immediately flagged down a police officer and told him he was robbed. The officer then accompanied the complainant back to the building, where the complainant identified defendant. Based on the weight of this credible evidence, the jury was justified in finding the defendant "used or threatened the immediate use" of a knife in the course of the robbery, as the trial court charged, and in finding defendant guilty beyond a reasonable doubt.
The Court of Appeals has determined as a matter of law that the evidence, viewed in light of the court's unprotested charge, was sufficient to establish defendant's guilt of first-degree robbery (11 NY3d at 878). There is no basis for this Court to perform interest of justice review of defendant's sufficiency claim, which was fully preserved. Defendant's present argument conflates interest of justice review of an unpreserved sufficiency claim with interest of justice review of an unpreserved claim of charging error.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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