People v Smith

People v Smith 2010 NY Slip Op 07601 [77 AD3d 564] October 26, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Kijuan Smith, Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 4, 2008, convicting defendant, after a nonjury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of eight 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 court's credibility determinations. The "[d]isplays what appears to be a . . . firearm" element of robbery in the first degree (Penal Law § 160.15 [4]) was satisfied by evidence that defendant pressed a hard object, which the victim believed to be a handgun, against the victim's waist while demanding money (see People v Lopez, 73 NY2d 214, 220 [1989]; People v Groves, 282 AD2d 278 [2001], lv denied 96 NY2d 901 [2001]).

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1992]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor should not have made a propensity argument regarding defendant's prior convictions, which had been admitted for impeachment only. However, we find that this argument did not deprive defendant of a fair trial, particularly since this was a nonjury trial where the trier of fact is presumed capable of disregarding such remarks (see People v Tong Khuu, 293 AD2d 424, 425 [2002], lv denied 98 NY2d 714 [2002]). Concur—Andrias, J.P., Nardelli, Moskowitz, DeGrasse and RomÁn, JJ.