Opinion
2022-00359 Ind. 3657/16
01-20-2022
The People of the State of New York, Respondent, v. David Carter, Defendant-Appellant. Appeal No. 15109 Case No. 2019-3547
Caprice R. Jenerson, Office of the Appellate Defender, New York (Emma L. Shreefter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Emma L. Shreefter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Before: Kapnick, J.P., Singh, Moulton, Shulman, Higgitt, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered September 20, 2018, convicting defendant, after a jury trial, of robbery in the first degree, criminal possession of a weapon in the third degree and grand larceny in the fourth degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.
The court provided meaningful notice of the contents of a jury note (see People v O'Rama, 78 N.Y.2d 270[1991]). The court did not summarize or paraphrase the note, but instead read it "almost verbatim" (People v Ramirez, 60 A.D.3d 560, 561 [1st Dept 2009], affd 15 N.Y.3d 824 [2010]). Although the note was oddly formatted, the court's reading of the note included all the content of the jury's request. To the extent there were inconsistencies between the note and the court's words as reflected in the transcript, they were minor and did not alter the meaning of the note.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). Defendant asserts that the evidence failed to establish his possession and threatened use of a dangerous instrument. The evidence, however, warrants the conclusion that, when defendant displayed a bottle opener with a "sharp tip" after the victim demanded his phone back, defendant was threatening the immediate use of the sharp object he displayed. "[G]iven the circumstances, there was no reasonable explanation of defendant's conduct other than an implied threat to use the [opener] against the [victim]" (People v Sharma, 112 A.D.3d 494, 495 [1st Dept 2013], lv denied 23 N.Y.3d 1025 [2014]; see also People v Boisseau, 33 A.D.3d 568 [1st Dept 2006], lv denied 8 N.Y.3d 844 [2007]; People v Thompson, 273 A.D.2d 153 [1st Dept 2000], lv denied 95 N.Y.2d 908 [2000]). Further, the jury, which saw a photograph of the bottle opener, could have reasonably found that it was readily capable of causing serious physical injury (see People v Espada, 94 A.D.3d 451, 452 [1st Dept 2012], lv denied 19 N.Y.3d 1025 [2012]).
We perceive no basis for reducing the sentence.