People v. Glover

• Citation: 144 A.D.2d 483,534 N.Y.S.2d 387
• Court: New York Supreme Court Appellate Division
• Decision Date: 14 November 1988
• Parties: The PEOPLE, etc., Respondent, v. Peter GLOVER, Appellant.

Page 387

534 N.Y.S.2d 387

144 A.D.2d 483

The PEOPLE, etc., Respondent, v. Peter GLOVER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 14, 1988.

Philip L. Weinstein, New York City (Henry Winestine, of counsel; Steven M. Statsinger, on the brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Andrew J. Frisch and Sherry B. Bokser, of counsel), for respondent.

Before KUNZEMAN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Huttner, J.), rendered December 4, 1986, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in refusing to charge petit larceny as a lesser included offense of robbery in the second degree. We disagree.

Under no reasonable view of the evidence could the jury have found that the defendant committed petit larceny without having also committed robbery in the second degree as charged (see, CPL 300.50[1]; People v. White, 121 A.D.2d 762, 504 N.Y.S.2d 170, lv. denied, 68 N.Y.2d 774, 506 N.Y.S.2d 1059, 498 N.E.2d 161; People v. Heath, 120 A.D.2d 746, 502 N.Y.S.2d 526, lv. denied 68 N.Y.2d 757, 506 N.Y.S.2d 1045, 497 N.E.2d 715; People v. Wedgeworth, 104 A.D.2d 915, 480 N.Y.S.2d 251). Nor was there a rational basis by which the jury could reject the testimony of the People's witnesses regarding the display of the gun yet accept that the defendant committed the theft (see, People v. Blim, 63 N.Y.2d 718, 480 N.Y.S.2d 192, 469 N.E.2d 513; People v. White, supra, 121 A.D.2d at 763, 504 N.Y.S.2d 170). Under the circumstances, the trial court properly refused to charge petit larceny since to do so would have compelled the jury to resort to sheer speculation (see, People v. Scarborough, 49 N.Y.2d 364, 426 N.Y.S.2d 224, 402 N.E.2d 1127; People v. Wedgeworth, supra, 104 A.D.2d at 917, 480 N.Y.S.2d 251).

We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit.