Opinion
1591
September 24, 2002.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered June 5, 2000, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 15 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 10 years, and otherwise affirmed.
MEREDITH BOYLAN, for respondent.
ROBERT S. DEAN PRO SE, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Buckley, Ellerin, Marlow, JJ.
The court properly declined to submit robbery in the third degree as a lesser included offense of robbery in the second degree since there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater. Each victim's testimony that defendant held his hand inside his pocket in a manner making it appear that he was holding a gun, and that defendant also threatened to shoot the victims, constituted an integrated whole (see People v. Negron, 91 N.Y.2d 788). Such testimony clearly established that defendant displayed what appeared to be a firearm within the meaning of Penal Law § 160.10(2)(b). There was no evidence suggesting that the robbery was committed in some other manner (see People v. Whitfield, 287 A.D.2d 393, lv denied 97 N.Y.2d 689), particularly since defendant testified that there was no robbery at all (see People v. Ruiz, 216 A.D.2d 63, affd 87 N.Y.2d 1027).
We find the sentence to be excessive to the extent indicated.
The contentions contained in defendant's pro se supplemental brief are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.