People v. Cloonan, 108339

• Decision Date: 01 November 2018
• Docket Number: 108339
• Citation: 166 A.D.3d 1063,87 N.Y.S.3d 707
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick CLOONAN, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1063
87 N.Y.S.3d 707

The PEOPLE of the State of New York, Respondent,
v.
Patrick CLOONAN, Appellant.

108339

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 6, 2018
Decided and Entered: November 1, 2018

87 N.Y.S.3d 708

Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant.

P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 2, 2016 in Albany County, upon a verdict convicting defendant of the crimes of robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree.

Following a jury trial, defendant was convicted of robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree in connection with a robbery at an M & T bank in the City of

87 N.Y.S.3d 709

Albany. He was sentenced, as a second felony offender, to an aggregate prison term of 15 years with five years of postrelease supervision. Defendant now appeals and we affirm.

Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence because the People failed to establish that he displayed what appeared to be a weapon during the robbery. At trial, Nicole Sparks, an assistant branch manager at the bank, testified that, while she was working as a teller in the lobby of the bank, "somebody came in and ... handed [her] a note saying that, this was a robbery, [he] needed $5,000 ... in hundreds and [fifties], [she] had two minutes to give it to him and he showed [her] what appeared to be a weapon, a gun." Sparks testified that the object that appeared to be a gun had a long, black, metal barrel and that the individual was holding it close to his chest. While testifying, Sparks identified defendant as the perpetrator of the robbery and testified that he left the bank with $11,930 in cash, including money that Sparks gave to him from the bank's "bait pack" – currency that the bank can track using logged serial numbers.

During a 911 call, which was admitted into evidence, Sparks can be heard telling the operator that defendant displayed what appeared to be a weapon with a long barrel. Additionally, Alfred Martin, a detective, testified that he was working when he received information about the bank robbery, which had occurred a couple of blocks to the north of where he was situated. Martin testified that he reviewed photographic stills from surveillance video that captured the robbery and was able to observe the perpetrator's face and clothing. While Martin was stationed at an intersection in Albany, he observed an individual walking faster than normal and recognized him as wearing much of the same distinctive clothing and having the same features as the perpetrator. After spotting this individual, Martin exited his police vehicle and directed the individual to stop, at which point the individual picked up his pace. Martin testified that, when he grabbed this individual's hand, the individual pulled a black handgun from his waist band, which turned out to be a BB gun. Martin explained that, at first sight, the weapon looked like a real handgun. While doing a pat-down search of the individual, Martin spotted a large amount of currency in his pants' pocket and in his socks and that, when the individual exited the police car at the police station, several bills fell out of his left front pocket onto the floor of the police car. Martin identified that individual as defendant and confirmed that approximately $11,537 was recovered from his person, including 19 bills that matched the serial numbers of the bait money given by Sparks.

When viewing this evidence in the light most favorable to the People, there was legally sufficient evidence that defendant displayed what appeared to be a firearm during the robbery. Sparks' testimony to this effect, combined with her reporting this fact on the 911 call shortly after the robbery and the fact that a BB gun was found on defendant's person during his arrest, could lead a rational person to conclude that defendant displayed a firearm (see People v. Kimbrough, 160 A.D.3d 541, 541–542, 74 N.Y.S.3d 249 [2014], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 431, 108...