People v. Wise

Full title: The PEOPLE of the State of New York, Respondent, v. Andre WISE…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 18, 2012

99 A.D.3d 584 (N.Y. App. Div. 2012)

952 N.Y.S.2d 196

2012 N.Y. Slip Op. 7039

Opinion

2012-10-18

The PEOPLE of the State of New York, Respondent, v. Andre WISE, Defendant–Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

FRIEDMAN

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, RICHTER, ABDUS–SALAAM, JJ.

Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing; Bruce Allen, J. at jury trial and sentencing), rendered August 4, 2010, convicting defendant of robbery in the second degree, and sentencing him, as a second felony offender, to a term of six years, unanimously affirmed.

The court properly denied defendant's suppression motion. The officers saw an apparently injured man lying on the ground. Defendant ran away from this man while attempting to stuff something into his rear waistband, that one of the officers believed, based on his experience, was a deadly weapon. That defendant continued these actions after the policetold him to stop tended to negate any innocent explanations. At this point, the police had reasonable suspicion upon which to draw their weapons and forcibly detain defendant ( see People v. Rivera, 286 A.D.2d 235, 729 N.Y.S.2d 481 [1st Dept.2001], lv. denied97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 [2002] ). A bystander then told the police that defendant had assaulted the man lying on the ground.

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] ). We reject defendant's challenge to the weight of the evidence supporting the physical injury element of second-degree robbery under Penal Law § 160.10(2)(a). The testimony of the victim, the officers and a bystander established that the victim had a swollen mouth, a bloody lip, and a bloody and bruised elbow, and that he temporarily lost consciousness.