Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Elvin ROIG, Defendant–Appellant. (Appeal No. 1.).
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him, upon a nonjury verdict, of robbery in the third degree (Penal Law § 160.05) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20). With respect to appeal No. 1, viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “The evidence supports the conclusion that defendant's use of force against store employees was for the purpose, at least in part, of retaining control of the stolen merchandise that was in his possession, that he did not voluntarily abandon any of the merchandise, and that he did not use force merely for the purpose of escaping” ( People v. Nieves, 37 A.D.3d 277, 277, 829 N.Y.S.2d 505,lv. denied9 N.Y.3d 848, 840 N.Y.S.2d 775, 872 N.E.2d 888;see People v. Thomas, 226 A.D.2d 120, 120, 640 N.Y.S.2d 503,lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432;People v. Miller, 217 A.D.2d 970, 970–971, 629 N.Y.S.2d 908).
“In view of our determination affirming the judgment in appeal No. [1], we reject defendant's contention that the judgment in appeal No. [2] must be reversed on the ground that he pleaded guilty in appeal No. [2] based on the promise that the sentence in appeal No. [2] would run concurrently with the sentence in appeal No. [1]” ( People v. Khammonivang, 68 A.D.3d 1727, 1727–1728, 891 N.Y.S.2d 837,lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012;cf. People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.