Opinion
2011-10-6
The PEOPLE of the State of New York, Respondent,v.Craig MAGNUM, t/n Craig Mangum, etc., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley of counsel), for respondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered June 10, 2010, as amended June 24, 2010, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 22 years, unanimously affirmed.
The court properly declined to submit robbery in the third degree as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater. The victim was certain that defendant displayed what appeared to be a pistol, and there was no identifiable record basis upon which the jury might have reasonably differentiated between segments of the victim's testimony ( see People v. Negron, 91 N.Y.2d 788, 792–793, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998]; see also People v. James, 11 N.Y.3d 886, 874 N.Y.S.2d 864, 903 N.E.2d 261 [2008] ). Defendant's alternative theory as to how the victim might have been robbed is entirely speculative.
We perceive no basis for reducing the sentence.
TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ., concur.