Opinion
2011-12-13
The PEOPLE of the State of New York, Respondent, v. Jamel BARNES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, ACOSTA, RICHTER, JJ.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered June 2, 2010, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed. Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 8, 2010, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a consecutive term of two years, unanimously affirmed.
Defendant's challenges to the legal sufficiency of the evidence are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations.
A videotape, taken together with the testimony of the victim, established a forcible theft that began as an act of shoplifting. After stealing merchandise, defendant initially attempted to go around the victim, a store security guard. When defendant failed to get around her, he lunged forward with great force as she attempted to hold defendant and prevent him from leaving the store. As a result, defendant dragged the victim with him and banged her hand into a door, causing injury. The evidence warranted the inference that defendant was not merely attempting to evade the victim, but was using force to overcome her resistance to his retention of stolen merchandise ( see People v. Gonzalez, 60 A.D.3d 447, 448, 874 N.Y.S.2d 118 [2009], lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009]; People v. Tucker, 41 A.D.3d 210, 211, 839 N.Y.S.2d 15 [2007], lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007], cert. denied 552 U.S. 1153, 128 S.Ct. 1094, 169 L.Ed.2d 829 [2008] ).
The evidence also established the element of physical injury. The victim's testimony amply supported the conclusion that her injuries caused substantial pain ( see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007]; People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). Moreover, the victim's testimony was corroborated by photographs.
Defendant's remaining arguments concerning his robbery conviction are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.
We perceive no basis for disturbing the imposition of consecutive sentences for the robbery and drug convictions.
Whether or not the payment of the surcharge could be deferred, the court properly denied the application on the sparse record here.