Decided on February 2, 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., Friedman, Catterson, Renwick, Roman, JJ.
Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered June 9, 2010, convicting defendant, after a jury trial, of robbery in the third degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 and 2 to 4 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the robbery conviction to 2 to 4 years, and otherwise affirmed.
The court properly denied defendant's motion to suppress his statement to the police. The record supports the court's finding that the statement, which defendant made prior to receiving Miranda warnings, was not the product of a custodial interrogation. In this street encounter near the scene of the crime, the police did not restrain defendant or do anything to convey to him that he had been taken into custody (see People v Taylor, 57 AD3d 327 , lv denied 12 NY3d 860 ). We reject defendant's challenge to the legal sufficiency of the evidence supporting the robbery conviction. The evidence supports the inference that when defendant threatened to beat up or kill the victim, defendant's intent was to retain possession of the cell phone he had stolen from the victim (see People v Flag, 2 AD3d 153 , lv denied 1 NY3d 627 ). The jury was entitled to reject the theory that defendant was merely trying to get back his own phone, which he claimed to have been stolen by the victim. The evidence also establishes that defendant made the threat immediately after stealing the victim's phone (see People v Jones, 282 AD2d 382, lv denied 96 NY2d 920 ).
We find the sentence excessive to the extent indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2012
© 1992-2012 VersusLaw ...