People v Jones

People v Jones 2017 NY Slip Op 08602 Decided on December 7, 2017 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 7, 2017
Manzanet-Daniels, J.P., Mazzarelli, Kapnick, Webber, JJ.
5150 2540/12

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

v

Ivan Jones, Defendant-Appellant.

Dechert LLP, New York (Andrew A. Spievack and Benjamin E. Rosenberg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered June 6, 2014, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 11 years, unanimously affirmed.

Defendant did not preserve his claim that the evidence was legally insufficient to establish that the victim's injury occurred in the course of a robbery, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also reject defendant's preserved challenge to the sufficiency of the evidence establishing that the injury rose to the level of "physical injury" (Penal Law § 10.00[9]), and find that the verdict was not against the weight of the evidence as to either issue (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

Initially, we find no basis for disturbing the jury's credibility determinations. Defendant's acquittal of other charges does not warrant a different conclusion (see People v Rayam, 94 NY2d 557 [2000]). Viewing the evidence as a whole, "including proof adduced by the defense" (People v Hines, 97 NY2d 56, 61 [2001]), we conclude that the evidence supports the conclusion that the victim's choking injuries were inflicted in the course of the robbery. The victim's testimony that she had difficulty swallowing for two weeks after the incident as the result of being choked supports a finding of physical injury (see People v Greene, 70 NY2d 860, 862 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 7, 2017

CLERK