Decided on January 12, 2012
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., Andrias, Saxe, Freedman, Roman, JJ.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 9, 2009, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.
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 ). This case escalated from a shoplifting into a robbery when a co-defendant used force to retain stolen merchandise. The testimony and surveillance videotape support the inference that defendant physically interfered, or tried to interfere, with the store manager's efforts to recover the property from the co-defendant, and that in doing so defendant intentionally participated in the co-defendant's use of force.
The court, which instructed the jury that the element of intent may be inferred from circumstances, properly declined to deliver a full circumstantial evidence charge containing language about exclusion of alternative reasonable hypotheses of innocence. No such instruction was necessary, because the case was based on both direct and circumstantial evidence (see People v Roldan, 88 NY2d 826 ; People v Daddona, 81 NY2d 990 ). Defendant's guilt was established through direct evidence of his conduct, and the inference of accessorial liability could be drawn from that conduct.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 12, 2012
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