Opinion
11514 Ind. 1228/16
05-14-2020
The PEOPLE of the State of New York, Respondent, v. Terrell SUMPTER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Gonza´lez, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered October 6, 2017, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him to concurrent terms of seven years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the provision of the order of protection that directed that it remain in effect until October 5, 2032 and remanding the matter for a new determination of the duration of the order, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence supports the conclusions that defendant used force with an intent to steal, and actually stole property from the victim.
The victim testified that the attack was the culmination of a long-standing dispute regarding payment of a drug debt and that he was arguing about the money with defendant and his accomplice just before defendant punched him. This warranted an inference of contemporaneous intent to steal (see People v. Gajadhar, 38 A.D.3d 127, 135–36, 828 N.Y.S.2d 346 [1st Dept. 2007], affd 9 N.Y.3d 438, 850 N.Y.S.2d 377, 880 N.E.2d 863 [2007] ; People v. Robinson, 239 A.D.2d 258, 258–59, 657 N.Y.S.2d 674 [1st Dept. 1997] ).
The victim also testified that defendant took items from his pockets and that defendant's accomplice threw some of the victim's items into a trash chute. A surveillance tape, while not clear, did not contradict this testimony. This conduct was sufficient to constitute a deprivation of property (see Penal Law § 155.00[3] ; People v. Collado, 146 A.D.3d 708, 47 N.Y.S.3d 266 [1st Dept. 2017], lv denied 29 N.Y.3d 996, 80 N.E.3d 410 [2017] ; People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74 [1972], affd 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319 [1972] ).
Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
We perceive no basis for reducing the sentence. However, as the People concede, the order of protection's expiration date is incorrect because it did not take into account the jail time credit to which defendant is entitled (see e. g. People v. Jackson, 121 A.D.3d 434, 993 N.Y.S.2d 35 [1st Dept. 2014] ).