Opinion
5642.
Decided on October 6, 2011.
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.
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.
Tom, J.P., Saxe, DeGrasse, Freedman, Román, JJ.
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 NY2d 788, 792-793; see also People v James , 11 NY3d 886 ). Defendant's alternative theory as to how the victim might have been robbed is entirely speculative.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.