People v Espada

People v Espada 2012 NY Slip Op 02569 Decided on April 5, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 5, 2012
Gonzalez, P.J., Tom, Catterson, Renwick, Richter, JJ.
7276 2572/09

[*1]The People of the State of New York, Respondent,

v

Edwin Espada, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York (Jan
Hoth of counsel), for appellant.
Edwin Espada, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Caleb
Kruckenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered May 12, 2010, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 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, 348-49 [2007]). Defendant asserts that the evidence failed to establish the element of use or threatened use of a dangerous instrument (see Penal Law § 160.15[3]. Initially, we find no basis for disturbing the jury's credibility determinations.

A store employee tried to stop defendant from departing with stolen merchandise. Defendant warned the employee not to touch him, pulled out a pair of pliers that he held at his side, and repeated the warning. The jury could have reasonably concluded that defendant thus made an implied threat to use the pliers against the employee (see e.g. People v Boisseau, 33 AD3d 568 [2006], lv denied 8 NY3d 844 [2007]).

Defendant also claims the pliers were not sharp enough to be readily capable of causing serious physical injury under the circumstances of their threatened use (see Penal Law § 10.00[13]). However, two witnesses described the pliers as "sharp," and the pliers were received in evidence and shown to the jury. [*2]

Defendant's pro se claims are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2012

CLERK