Opinion
288 4377/10.
02-23-2016
The PEOPLE of the State of New York, Respondent, v. David CRUZADO, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (William Terrell, III of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (William Terrell, III of counsel), for respondent.
Opinion
Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered November 9, 2012, 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 not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007 ). The evidence supports the conclusion that when defendant used force against a store employee, at least one of his objectives was to overcome the employee's resistance to defendant's retention of stolen merchandise (see People v. Gordon, 23 N.Y.3d 643, 649–651, 992 N.Y.S.2d 700, 16 N.E.3d 1178 2014 ). The record establishes that defendant still had the merchandise at the time he punched the employee and that he lost possession of it only in the midst of the altercation (see People v. Colon, 129 A.D.3d 597, 597, 13 N.Y.S.3d 16 1st Dept.2015, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 2015 ). Thus, defendant's statement that he would surrender the merchandise was negated by his actions.