Opinion
April 7, 1994
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
This prosecution arose out of several robberies perpetrated in Riverside Park, in quick succession, during the morning of July 16, 1991. James Smith was present with defendant for each of these robberies. During one robbery, defendant savagely beat the victim, causing severe injury. During another robbery, defendant simulated his possession of a weapon, by placing his right hand under the left side of his jacket, by the waistband, as he demanded money. This conduct satisfied the element of robbery in the second degree that he displayed what appeared to be a firearm (People v Lopez, 73 N.Y.2d 214; People v Williams, 187 A.D.2d 266, lv denied 81 N.Y.2d 767) regardless of whether the bulge thereby created could have been explained otherwise (People v Simmons, 186 A.D.2d 95, 97, lv denied 81 N.Y.2d 976). During these robberies Smith stood close by, either blocking the victim as he or she approached (People v Patton, 184 A.D.2d 483), acting as lookout (People v White, 167 A.D.2d 246, lv denied 77 N.Y.2d 883), standing in an avenue of escape (People v Robinson, 127 A.D.2d 860), impeding pursuit (People v Patton, supra), or positioning himself to provide immediate aid to defendant during the robbery (People v Wilkerson, 189 A.D.2d 592, lv denied 81 N.Y.2d 849). The element of robbery in the second degree requiring that the defendant be aided by another person actually present thereby was satisfied. Furthermore, the evidence establishes that these defendants shared a community of purpose in robbing these victims (see, People v McLean, 107 A.D.2d 167, 169, affd 65 N.Y.2d 758). Viewing the evidence in a light most favorable to the People and giving due deference to the jury's findings of credibility, under the standards set forth in People v Bleakley ( 69 N.Y.2d 490, 495) defendant's guilt was proved beyond a reasonable doubt by overwhelming evidence and the verdict was not against the weight of that evidence.
Defendant's challenge to the return of vouchered money prior to trial without notice to defendant in violation of Penal Law § 450.10 is unpreserved for review, and we decline to review it in the interest of justice. We note, however, defendant has failed to demonstrate actual prejudice, or bad faith (People v Graham, 186 A.D.2d 47, lv denied 80 N.Y.2d 975), and the court provided adequate sanctions (see, People v Borders, 163 A.D.2d 852, lv denied 76 N.Y.2d 891). Defendant's challenge to the court's identification charge is unpreserved for review (see, People v Whalen, 59 N.Y.2d 273), and we decline to review it in the interest of justice. In any event, the charge adequately focused the jury's attention on lighting, the length of observations, the distance between witnesses and the perpetrators, and the victims' frames of mind (see, People v Lane, 143 A.D.2d 581, 582).
We have considered defendant's remaining contentions and find they do not warrant modification of the judgment.
Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.