Opinion
January 19, 1995
Appeal from the Supreme Court, Bronx County (Gerald Sheindlin, J.).
We reject defendant's challenge to the sufficiency of the evidence supporting the robbery count. Although the main purpose of defendant's use of force may have been rape and sodomy, there was evidence from which the jury could reasonably conclude that defendant took the undressed victim's money from her clothing while he was still holding her prisoner under threat of death, and "continued the threat of force with the conscious objective of overcoming resistance to the taking or retention of the property" (People v. Smith, 79 N.Y.2d 309, 315).
The court's Sandoval ruling was a proper exercise of discretion (People v. Pavao, 59 N.Y.2d 282, 292).
We find no error in the court's use of the word "insufficiency" (of evidence) in its reasonable doubt instruction, instead of the virtually synonymous word "lack" requested by defendant (People v. Dory, 59 N.Y.2d 121, 129; see also, People v. Medina, 171 A.D.2d 559, 560, lv denied 78 N.Y.2d 924).
While, at sentencing, the court referred briefly to material that would normally be protected by the attorney-client privilege, such came to the court's attention in a lawful manner as a result of an argument made by defense counsel during trial, and, in any event, had no effect on the sentence.
We adhere to our previously rendered motion decision denying reconstruction of certain lost minutes except to the extent of utilizing the trial court's notes to complete the record. Upon examination of the entire record, we conclude that defendant has not identified any potential issues that might require further reconstruction of this insignificant and inconsequential part of the trial (compare, People v. Council, 162 A.D.2d 365, lv denied 76 N.Y.2d 984, with People v. Heredia, 191 A.D.2d 271).
Concur — Ellerin, J.P., Ross, Williams and Tom, JJ.