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People v. Jorge

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EDWIN JORGE, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered November 26, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 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., Sweeny, Nardelli, Acosta, Manzanet-Daniels, JJ.

3097/07

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. The element of force was established by evidence that after stealing an item from a store, defendant sprayed mace in the face of a store employee in an effort to prevent him from recovering the property. Contrary to defendant's argument, there was ample evidence that he knew this person was a store employee. Since defendant was in possession of the stolen property while he was engaged in this use of force and never discarded or even sought to relinquish it, the evidence supports the inference that his purpose in using force was to retain control of the property and not merely to escape or defend himself (see e.g. People v Brandley, 254 AD2d 185 [1998], lv denied, 92 NY2d 1028 [1998]).

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

20100330

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