Opinion
03-08-2016
The PEOPLE of the State of New York, Respondent, v. Phillip JOHNSON, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph Nursey of counsel) and Jones Day, New York (Jie Gao of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Laura Higgins of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph Nursey of counsel) and Jones Day, New York (Jie Gao of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Laura Higgins of counsel), for respondent.
Judgment, Supreme Court, New York County (Melissa Jackson, J.), rendered June 10, 2013, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.
The court properly denied defendant's request to charge petit larceny as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he took property without the use of force. The jury would have had no basis for finding that defendant's taking of some of the victim's property was a nonforcible larceny, separate from defendant's undisputed use of force in an unsuccessful attempt to take the victim's laptop during the same attack.
Since defendant's proposed responses to a note from the deliberating jury (i.e., a one-word answer or, alternatively, a verbatim reading of the pertinent portion of the original charge) were completely different from the position he takes on appeal, defendant has not preserved his claim that the court's response provided inadequate guidance (see e.g. People v. Green, 134 A.D.3d 501, 20 N.Y.S.3d 528 [1st Dept.2015] ), and we decline to review it in the interest of justice. As an alternative holding, we find that the court responded meaningfully to the jury's question by accurately re-explaining the elements of robbery (see People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ).
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, JJ., concur.