Defendant Malik Howard appeals from the judgment of the Supreme Court, Bronx County (Robert E. Torres, J.), rendered November 25, 2009, convicting him, after a jury trial, of robbery in the first degree, and imposing sentence, and defendant Hilbert Stanley appeals from the judgment, same court and Justice, rendered June 19, 2008, convicting him, after a jury trial, of robbery in the first degree, and imposing sentence.
The opinion of the court was delivered by: Richter, J.
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.
Decided on January 12, 2012
David B. Saxe,J.P. David Friedman Karla Moskowitz Helen E. Freedman Rosalyn H. Richter, JJ.
In the early morning hours of April 21, 2006, Domingo Lopez was walking home from his job as a waiter. A car approached him at a slow speed but Lopez did not pay any attention at first because he thought they were looking for parking. Suddenly, Lopez heard people running behind him. As he turned around, Lopez saw defendants Malik Howard and Hilbert Stanley get out of the car and come towards him. Howard stood in front of Lopez, and Stanley positioned himself behind Lopez. Howard put a gun to Lopez's head and neck and took Lopez's wallet and $60 in cash from his pocket. Stanley placed an object against Lopez's back; Lopez could not be certain whether it was a gun or "something else." After taking Lopez's property, defendants returned to their car and fled. A short time later, defendants were pulled over by the police and apprehended. A black BB gun was recovered from the trunk of their car. When shown that gun at trial, Lopez testified that it appeared to be the type of gun pointed at his head and neck during the robbery.
After a jury trial, both defendants were convicted of robbery in the first degree (Penal Law § 160.15). Under that subdivision, "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime . . . he or another participant . . . [d]isplays what appears to be a pistol . . . or other firearm." However, it is an affirmative defense that the object displayed "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged" (Penal Law § 160.15). If the defendant proves the affirmative defense by a preponderance of the evidence, the crime is reduced to robbery in the second degree (People v Lopez, 73 NY2d 214, 219 ).
Defendants maintain that because the object displayed by Howard during the robbery was actually a BB gun and not a firearm, the affirmative defense was established as a matter of law, and the convictions should be reduced to second-degree robbery. Defendants also claim that Lopez's testimony about Stanley's placing an object against his back was insufficient to support a first-degree robbery conviction. However, defendants neither asked the court to instruct the jury on the affirmative defense nor objected to its absence in the court's charge. Likewise, defendants did not argue that the People's proof failed to satisfy the "display" element of first-degree robbery. Thus, as defendants concede, these claims are unpreserved (see People v Gray, 86 NY2d 10 ; see also People v Williams, 15 AD3d 244, 245 , lv denied 5 NY3d 771 ), and we decline to review them in the interest of justice.
As an alternative holding, we find that the verdict was based on legally sufficient evidence. We also conclude that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). To satisfy the "display" element of first-degree robbery, there must be a showing that the defendant "consciously displayed something that could reasonably be perceived as a firearm . . . and that the victim actually perceived the display" (People v Lopez, 73 NY2d at 220). Furthermore, "an object can be displayed' without actually being seen by the victim even in outline. All that is required is that the defendant, by his actions, consciously manifest the presence of an object to the victim in such a way that the victim reasonably perceives that the defendant has a gun" (id. at 222 [citations omitted]).
Here, Lopez testified that the two defendants surrounded him, Howard in front of him putting a gun to his head and neck and Stanley behind him placing an object against his back. Under these circumstances, Lopez could reasonably have perceived Stanley's object to be a gun, particularly since Lopez saw Howard holding a gun and at the same time felt Stanley place something against his back (see People v Groves, 282 AD2d 278 , lv denied 96 NY2d 901 ).
The fact that Lopez acknowledged that the object Stanley placed against his back could have been something other than a gun is of no legal consequence. In People v Simmons (186 AD2d 95 , lv denied 81 NY2d 976 ), this Court affirmed a first-degree robbery conviction where the evidence showed that the defendant "simply thrust his hand forward in his pants as if armed" (186 AD2d at 96). We held that the fact that the victim believed the bulge in the defendant's pants could have been some weapon other than a gun did not constitute a failure of proof. We concluded that "Penal Law § 160.15(4) requires only that the object displayed reasonably appears to be a gun, not that it is in fact a gun or that it could be nothing but a gun" (id. at 97).
The Second Department reached a similar conclusion in People v Washington (229 AD2d 601 , lv denied 88 NY2d 1072 ). There, the victim testified that during the robbery, the defendant put his hand in his jacket pocket and pressed a hard object to her side. She further testified that she thought the object was "probably a gun or a knife, I'm not really sure" (229 AD2d at 602). In affirming the conviction, the Court stated that "[c]learly, part of the complainant's perception of the object was that it was a gun, and that portion of her perception is legally sufficient to support a finding that the defendant displayed what appeared to be a firearm" (id.; see ...