Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered December 18, 2009, convicting him of robbery in the first degree (five counts), robbery in the second degree (five counts), and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the convictions of robbery in the first degree and robbery in the second degree pertaining to a robbery that took place March 9, 2007, vacating the sentences imposed thereon, and dismissing counts 37 and 38 of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally insufficient to prove the defendant's identity as one of the people involved in a robbery that took place on March 9, 2007. We therefore vacate the convictions of robbery in the first degree and robbery in the second degree pertaining to March 9, 2007, vacate the sentences imposed thereon, and dismiss counts 37 and 38 of the indictment.
Contrary to the defendant's contention, the trial court properly denied his request to have robbery in the third degree (see Penal Law § 160.05) charged as a lesser-included offense of robbery in the first degree (see Penal Law § 160.15), pertaining to the robberies committed on December 17, 2006, January 4, 2007, February 18, 2007, and March 16, 2007. Viewing the evidence in the light most favorable to the defendant (see People v Devonish, 6 N.Y.3d 727, 728), the robbery victims' testimony established that during each of these robberies, one or more of the perpetrators consciously manifested the presence of an object to one or more of the victims in such a way that the victim reasonably believed that the perpetrator had a weapon (see People v Baskerville, 60 N.Y.2d 374; People v Micolo, 30 A.D.3d 615; People v Rogers, 19 A.D.3d 437; see also Gonzalez v Reiner, 177 F.Supp.2d 211 [SD NY 2001]; Taylor v Kuhlmann, 36 F.Supp.2d 534 [ED NY 1999]). Thus, no reasonable view of the evidence supported charging robbery in the third degree, which does not require the display of a weapon, as a lesser-included offense (see Penal Law § 160.05).
The defendant's contention that the trial court violated his right to a fair trial and his right to counsel by improperly curtailing his right to present an effective argument in summation is unpreserved for appellate review (see People v Nails, 95 A.D.3d 1237; People v Paixao, 23 A.D.3d 677; People v McCullough, 16 A.D.3d 183; CPL 470.05). In any event, the trial court properly limited defense counsel's summation remarks under the circumstances of this case (see People v Nails, 95 A.D.3d 1237; People v Thomas, 85 A.D.3d 1572, affd 21 N.Y.3d 226; People v Paixao, 23 A.D.3d 677; People v Ramos, 305 A.D.2d 115). Accordingly, the defendant was not deprived of his right to a fair trial.
The sentence imposed was not excessive (see People v Delgado, 80 N.Y.2d 780; People v Thompson, 60 N.Y.2d 513, 519; People ...