People v Jorge

People v Jorge 2010 NY Slip Op 02668 [71 AD3d 604] March 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent,
v
Edwin Jorge, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered November 26, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. The element of force was established by evidence that after stealing an item from a store, defendant sprayed mace in the face of a store employee in an effort to prevent him from recovering the property. Contrary to defendant's argument, there was ample evidence that he knew this person was a store employee. Since defendant was in possession of the stolen property while he was engaged in this use of force and never discarded or even sought to relinquish it, the evidence supports the inference that his purpose in using force was to retain control of the property and not merely to escape or defend himself (see e.g. People v Brandley, 254 AD2d 185 [1998], lv denied 92 NY2d 1028 [1998]). Concur—Mazzarelli, J.P., Sweeny, Nardelli, Acosta and Manzanet-Daniels, JJ.