People v Burgess

People v Burgess 2011 NY Slip Op 09166 Decided on December 20, 2011 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 December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, Román, JJ.
6373 2133/09

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

v

Jason Burgess, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Anastasia Heeger of counsel), and Weil, Gotshal &
Manges LLP, New York (Katherine M. Brandes of counsel), for
appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of
counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at hearing; Bonnie G. Wittner, J. at jury trial and sentencing), rendered April 27, 2010, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The verdict was based on legally sufficient evidence. Defendant's conduct went well beyond being merely present at the scene of a robbery. The evidence supports the inference that defendant intentionally assisted his companions by intimidating and partially encircling the victim (see e.g. People v Snow, 303 AD2d 255 [2003], lv denied 99 NY2d 658 [2003]; People v Edmonds, 267 AD2d 19 [1999], lv denied 94 NY2d 862 [1999]).

The court properly denied defendant's suppression motion. Shortly after the police saw three men running, they spoke with the victim, who said in substance that he been robbed by the three men who had just run by. This provided, at least, reasonable suspicion upon which to detain defendant and his two companions when the police saw them again, still in flight, a short distance away. Given the temporal and spatial factors, it was a reasonable inference that these were the same three men whom the victim was accusing of robbery.

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 also reject them on the merits (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v [*2]D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Where appropriate, the court took curative actions that were sufficient to prevent any prejudice.

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

ENTERED: DECEMBER 20, 2011

CLERK