People v. Hodges

• Decision Date: 05 March 1990
• Citation: 552 N.Y.S.2d 384,159 A.D.2d 517
• Parties: The PEOPLE, etc., Respondent, v. Leroy HODGES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 384

552 N.Y.S.2d 384

159 A.D.2d 517

The PEOPLE, etc., Respondent, v. Leroy HODGES, Appellant.

Supreme Court, Appellate Division Second Department.

March 5, 1990.

Andrew T. Harrison, Lake Ronkonkoma, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Greg M. Bernhard and Maryanne Luciano, of counsel), for respondent.

Before MANGANO, J.P., and KUNZEMAN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered December 15, 1987, convicting him of robbery in the first degree, grand larceny in the fourth degree, and menacing, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to prove beyond a reasonable doubt that the larceny involved a taking "from the person of another" so as to constitute grand larceny in the fourth degree (see, Penal Law § 155.30[5], was not preserved for appellate review since it was not raised with specificity in the trial court (see, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Vernon, 150 A.D.2d 407, 540 N.Y.S.2d 837). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].

We find no merit to the defendant's contention that the court should have charged robbery in the second degree as a lesser included offense of robbery in the first degree on the theory that there was circumstantial evidence from which the jury could find that the gun used by the defendant during the robbery was inoperable. Inoperability of the gun used is an affirmative defense to robbery in the first degree (Penal Law § 160.15[4] and the defendant failed to present any evidence that the weapon was inoperative so as to warrant the lesser charge (see, Penal Law 25.00[2]; People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646, 457 N.E.2d 752; People v. Cotarelo, 129 A.D.2d 725, 726, 514 N.Y.S.2d 489, affd. 71 N.Y.2d 941, 528 N.Y.S.2d 816, 524 N.E.2d 137; People v. Ames, 115 A.D.2d 543, 496 N.Y.S.2d 65).

We have considered the defendant's remaining contentions and find them to be unpreserved...