Opinion
2012-11-9
The PEOPLE of the State of New York, Respondent, v. Larry J. WILLIAMS, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered July 8, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree. Timothy P. Donaher, Public Defender, Rochester (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered July 8, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree.
Timothy P. Donaher, Public Defender, Rochester (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
MEMORANDUM:
Defendant was convicted following a jury trial of robbery in the second degree (Penal Law § 160.10[2][b] ) for robbing a bank while holding his hand in his sweatshirt pocket and informing a teller that he had a gun. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that the victim perceived the “ display” of a weapon ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, there is no merit to that contention. To establish the “display” element of the robbery statute, “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” ( People v. Lopez, 73 N.Y.2d 214, 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328;see People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752). “[T]he display requirement has been broadly construed to cover a wide range of actions which might reasonably create the impression in the mind of the victim that the robber is armed with a firearm” ( Lopez, 73 N.Y.2d at 220–221, 538 N.Y.S.2d 788, 535 N.E.2d 1328;see Baskerville, 60 N.Y.2d at 381–382, 469 N.Y.S.2d 646, 457 N.E.2d 752). Thus, it has been held that a hand consciously concealed in clothing may satisfy the display requirement “if under all the circumstances the defendant's conduct could reasonably lead the victim to believe that a gun is being used during the robbery” ( Lopez, 73 N.Y.2d at 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328;see People v. Middleton, 247 A.D.2d 713, 713, 669 N.Y.S.2d 82,lv. denied92 N.Y.2d 856, 677 N.Y.S.2d 87, 699 N.E.2d 447). Upon our review of the record, we conclude that the evidence is legally sufficient to establish that the victim perceived that defendant displayed what appeared to be a firearm during the course of the robbery ( see Lopez, 73 N.Y.2d at 221–222, 538 N.Y.S.2d 788, 535 N.E.2d 1328;Middleton, 247 A.D.2d at 713–714, 669 N.Y.S.2d 82). Furthermore, although a finding that defendant did not display a firearm would not have been unreasonable ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we conclude that, upon viewing the evidence in light of the elements of the crime of robbery in the second degree, it cannot be said that the jury failed to give the evidence the weight it should be accorded ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We further conclude that the sentence is not unduly harsh or severe. Contrary to defendant's contention, “the fact that [Supreme Court] imposed a more severe sentence after trial than that offered during plea negotiations does not demonstrate that defendant was punished for exercising his right to a trial” ( People v. McCallum, 96 A.D.3d 1638, 1640, 946 N.Y.S.2d 799).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.