The People of the State of New York, Respondent, v Clifton Bynum, Appellant.
Supreme Court, Appellate Division, Third Department, New York
70 A.D.3d 1348, 890 N.Y.S.2d 217
Spain, J.
Spain, J.
Defendant was convicted after a jury trial of robbery in the third degree in connection with the theft of watches from a drug store located in the City of Schenectady, Schenectady County. After observing defendant pocketing the watches from a display case in the store, a security guard ordered defendant to stop and empty his pockets. A scuffle ensued and defendant fled out of the store and away in a white vehicle. After the store manager provided the police with the license plate number and photographs of defendant from the store‘s video surveillance equipment, defendant was apprehended and arrested. He was sentenced to 3 to 6 years of incarceration based on his status as a second felony offender. Defendant now appeals from the judgment of conviction, and we affirm.
Defendant contends that there was legally insufficient evidence that he used force during the commission of a theft or that he possessed stolen property, both essential elements to show a prima facie case of robbery in the third degree (see
Forcible stealing is defined as “us[ing] or threaten[ing] the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” (
Here, the security guard testified that when he instructed defendant to empty his pockets, defendant produced two watches of a brand sold at the store, still in their packaging. When ordered to empty his remaining pockets, defendant attempted to leave the store and the scuffle ensued. The security guard further testified that, at one point, defendant attempted to strike him with a fist and that when he “got scared and felt he was going to [get hurt]” he let defendant go. This testimony was corroborated by the testimony of a cashier and a pharmacist who witnessed the altercation. Further, testimony was introduced that four other watches—unpackaged, of a brand consistent with those sold at the store and apparently new—were found in defendant‘s possession after he was apprehended. Viewed in the light most favorable to the People, permissible inferences could lead a rational person to the conclusion reached by the jury that defendant used force or at least the threat of force in order to retain control of the watches thus satisfying the proof and burden requirements for robbery in the third degree (see People v Whitted, 16 AD3d 905, 906 [2005], lv denied 4 NY3d 892 [2005]; People v Jones, 4 AD3d at 623-624; People v Rychel, 284 AD2d at 663).
Defendant‘s remaining contentions are without merit. Specifically, we hold that defendant was not deprived of the effective assistance of counsel. Contrary to defendant‘s assertions, defense counsel adequately raised sufficiency arguments in his motion to dismiss the indictment following the close of the People‘s case. We perceive no error in defense counsel‘s decision not to request that County Court poll the jury after the verdict; we also find that defense counsel‘s comment to the court during a side-bar discussion that “defendant has been moaning for 20 minutes that he needs a bathroom break,” although somewhat unprofessional, did not render his trial unfair. Indeed, defense counsel filed appropriate motions, engaged in thorough cross-examination of the People‘s witnesses and proffered a cogent trial theory. Accordingly, viewing this case in its totality, counsel offered meaningful representation (see generally People v Baldi, 54 NY2d 137 [1981]; see People v Echavarria, 53 AD3d 859, 864 [2008], lv denied 11 NY3d 832 [2008]; People v Jones, 47 AD3d 961, 964-965 [2008], lv denied 10 NY3d 812 [2008]).
Finally, defendant‘s claim that he was improperly sentenced as a second felony offender because he was not informed of his rights under
Cardona, P.J., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.