Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Andrew B. WOMACK, also known as Worm, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (V. Christopher Eaggleston of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (V. Christopher Eaggleston of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the third degree ( Penal Law § 160.05 ), arising from an incident involving the taking of property from his girlfriend. Initially, we note that defendant's challenges to the sufficiency of the evidence regarding the taking of property in an incident occurring at 9:00 a.m. are moot, inasmuch as defendant was acquitted of the count of the indictment that charged him with robbery at that time. Furthermore, defendant's challenges to the sufficiencyof the evidence with respect to the counts of which he was convicted are not preserved for our review, inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ " at the grounds now raised on appeal ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).
In any event, defendant's challenges are without merit. We conclude that the evidence is legally sufficient to establish that he used physical force for the purpose of retaining the property "immediately after" he had stolen it ( Penal Law § 160.00[1] ; see People v. Gosier, 35 A.D.3d 1241, 1241, 826 N.Y.S.2d 921, lv. denied 8 N.Y.3d 984, 838 N.Y.S.2d 488, 869 N.E.2d 664 ; People v. Williams, 12 A.D.3d 317, 318, 784 N.Y.S.2d 867, lv. denied 4 N.Y.3d 749, 790 N.Y.S.2d 662, 824 N.E.2d 63 ; see generally People v. Carrel, 99 N.Y.2d 546, 547, 754 N.Y.S.2d 198, 784 N.E.2d 71 ), and thus the conviction concerning the robbery occurring at 11:00 a.m. is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, "there is [a] valid line of reasoning and permissible inferences which could lead a rational person" to conclude that the victim sustained a physical injury during the incident ( id. at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see People v. Lewis, 129 A.D.3d 1546, 1547–1548, 12 N.Y.S.3d 678, lv. denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 ; People v. Carson, 126 A.D.3d 996, 997, 6 N.Y.S.3d 269, lv. denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 ), and thus the conviction of assault in the third degree is supported by legally sufficient evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.