People v Kane

People v Kane 2010 NY Slip Op 04510 [73 AD3d 657] May 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

The People of the State of New York, Respondent,
v
Ibrahima Kane, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven W. Paynter, J.), rendered July 10, 2008, convicting defendant, after a jury trial, of robbery in the first degree (two counts), assault in the second degree (two counts), and grand larceny in the fourth degree, and sentencing him to an aggregate term of nine years, unanimously affirmed.

Defendant did not preserve his claim that the court should have charged third-degree robbery as a lesser included offense (see People v Alvarez, 51 AD3d 167, 180 [2008], lv denied 11 NY3d 785 [2008]), and we decline to review it in the interest of justice. As an alternative holding, we find there was no reasonable view of the evidence, viewed most favorably to defendant, to support that charge. Nothing in the People's case supported a reasonable view that defendant was guilty of only third-degree robbery (see People v Negron, 91 NY2d 788 [1998]; People v Camara, 44 AD3d 492 [2007], lv denied 9 NY3d 1031 [2008]), and under the version of the incident presented in his own testimony, defendant was not guilty of any degree of robbery (see People v Ruiz, 216 AD2d 63 [1995], affd 87 NY2d 1027 [1996]).

The basis of defendant's claim on appeal that the court improperly amended a count of the indictment is also unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that defendant was not prejudiced by the amendment.

We perceive no basis for reducing the sentence. Concur—Tom, J.P., Friedman, Nardelli, Acosta and Abdus-Salaam, JJ.