Opinion
2011-12-20
The PEOPLE of the State of New York, Respondent, v. Jason BURGESS, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), and Weil, Gotshal & Manges LLP, New York (Katherine M. Brandes of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), and Weil, Gotshal & Manges LLP, New York (Katherine M. Brandes of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, SWEENY, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J. at hearing; Bonnie G. Wittner, J. at jury trial and sentencing), rendered April 27, 2010, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
The verdict was based on legally sufficient evidence. Defendant's conduct went well beyond being merely present at the scene of a robbery. The evidence supports the inference that defendant intentionally assisted his companions by intimidating and partially encircling the victim ( see e.g. People v. Snow, 303 A.D.2d 255, 755 N.Y.S.2d 839 [2003], lv. denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297 [2003]; People v. Edmonds, 267 A.D.2d 19, 699 N.Y.S.2d 54 [1999], lv. denied 94 N.Y.2d 862, 704 N.Y.S.2d 537, 725 N.E.2d 1099 [1999] ).
The court properly denied defendant's suppression motion. Shortly after the police saw three men running, they spoke with the victim, who said in substance that he been robbed by the three men who had just run by. This provided, at least, reasonable suspicion upon which to detain defendant and his two companions when the police saw them again, still in flight, a short distance away. Given the temporal and spatial factors, it was a reasonable inference that these were the same three men whom the victim was accusing of robbery.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). Where appropriate, the court took curative actions that were sufficient to prevent any prejudice.