People v Miller

People v Miller 2019 NY Slip Op 08613 Decided on December 3, 2019 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 3, 2019
Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.
10490 2941/16

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

v

Fabian Miller, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered July 13, 2017, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 3½ 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 upon which to disturb the jury's determinations concerning credibility. The evidence established every element of robbery under the theory of forcible retention of stolen property immediately after the taking (Penal Law § 160.00[1]). The jury could reasonably infer that defendant's violent response to the victim's attempt to reclaim a backpack that the victim had laid aside while sleeping on a park bench was incompatible with the behavior of a person who had innocently acquired lost or abandoned property (see generally People v Gordon, 23 NY3d 643, 650 [2014]). The jury could also infer that defendant's use of force was sufficiently proximate in time to his original taking of the backpack so as to satisfy the requirement of immediacy (see People v Dekle, 83 AD2d 522 [1st Dept 1981], affd 56 NY2d 835 [1982]). We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2019

CLERK