Opinion
June 29, 1995
Appeal from the Supreme Court, Bronx County (Vincent Vitale, J., John Collins, J.).
Defendant's contention that a reasonable person could not have thought that the portion of the umbrella displayed during the robbery was the barrel of a gun is without merit. The display element under Penal Law § 160.10 (2) (b) is satisfied when it is shown that the defendant consciously displayed something that could reasonably be perceived as a firearm with the intent of forcibly taking property, and when it appeared to the victim "by sight, touch or sound" that he or she was being threatened by a gun ( People v. Baskerville, 60 N.Y.2d 374, 381). Here, this element was satisfied by the complainant's testimony, credited by the jury, that defendant held a "round metal piece" about a half inch in diameter in his hand, which was inside his coat sleeve, and that the complainant, upon hearing defendant demand that she turn over her money, believed the object to be a gun.
Defendant's claim that testimony of the arresting officer had an improper "bolstering effect" is unpreserved, and in any event without merit since the officer was referring to his own observations prior to arresting defendant ( People v. Acosta, 174 A.D.2d 363, 364, lv denied 78 N.Y.2d 1073).
The prosecutor's summation remarks referred to on appeal were fair responses to credibility matters initially raised by the defense.
Defendant's claim that the trial court's charge on the firearm display element was improper is unpreserved, and in any event without merit. The instruction that one element to be satisfied was "that in the course of the commission of such forcible stealing, the defendant displayed what appeared to be a pistol" was a verbatim recitation of the statutory language ( see, Penal Law § 160.10 [b]), and adequately conveyed the appropriate standard. Nor did the court's identification charge contain insufficient instructions ( People v. Navallo, 186 A.D.2d 156).
Concur — Murphy, P.J., Sullivan, Rosenberger and Wallach, JJ.