Opinion
10490 Ind. 2941/16
12-03-2019
The PEOPLE of the State of New York, Respondent, v. Fabian MILLER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered July 13, 2017, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.
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, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis upon which to disturb the jury's determinations concerning credibility. The evidence established every element of robbery under the theory of forcible retention of stolen property immediately after the taking ( Penal Law § 160.00[1] ). The jury could reasonably infer that defendant's violent response to the victim's attempt to reclaim a backpack that the victim had laid aside while sleeping on a park bench was incompatible with the behavior of a person who had innocently acquired lost or abandoned property (see generally People v. Gordon , 23 N.Y.3d 643, 650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ). The jury could also infer that defendant's use of force was sufficiently proximate in time to his original taking of the backpack so as to satisfy the requirement of immediacy (see People v. Dekle , 83 A.D.2d 522, 441 N.Y.S.2d 261 [1st Dept. 1981], affd 56 N.Y.2d 835, 452 N.Y.S.2d 568, 438 N.E.2d 101 [1982] ). We have considered and rejected defendant's remaining arguments.