People v. Prato

• Citation: 531 N.Y.S.2d 821,143 A.D.2d 205
• Parties: The PEOPLE, etc., Respondent, v. Gino PRATO, Appellant.
• Decision Date: 15 August 1988
• Court: New York Supreme Court Appellate Division

Page 821

531 N.Y.S.2d 821

143 A.D.2d 205

The PEOPLE, etc., Respondent, v. Gino PRATO, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 15, 1988.

Ursula Bentele, Brooklyn (Steven M. Distler, on the brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Richard J. Cutler and Darrell Fields, of counsel), for respondent.

Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), entered June 27, 1984, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). The testimony adduced at trial established that the defendant and an accomplice entered the Chez Price restaurant in Brooklyn, displayed and threatened to use a .38 caliber gun, and removed currency from the cash register. We find no merit to the defendant's contention that the prosecution failed to establish the crime of robbery in the first degree because it failed to produce the owner of the restaurant at trial. To sustain a conviction for that crime the People are required to prove only that the defendant forcibly stole property from a person with a superior right to possession than the defendant ( see, People v. Hutchinson, 56 N.Y.2d 868, 869, 453 N.Y.S.2d 394, 438 N.E.2d 1109; People v. Brown, 108 A.D.2d 922, 923, 485 N.Y.S.2d 812; Penal Law §§ 160.15[4], 155.00[5] ). Pierre Charles, who testified to the forcible taking at trial, was an employee of the restaurant who had a right of possession to the money in the cash register superior to that of the defendant who had no right of possession whatsoever ( see, People v. Brown, 108 A.D.2d 922, 923, 485 N.Y.S.2d 812, supra ).

Turning to the defendant's claim of error with respect to the court's charge to the jury, no objection was raised at trial and, therefore, the claim of error is not preserved for appellate review (CPL 470.05 [2]; see also, People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114). At any rate, we find that the trial court's instructions to the jury did not constitute an impermissible amendment of the indictment with respect to a material element of the crime charged ( see, People v. Spann, 56 N.Y.2d 469, 473, 452 N.Y.S.2d 869, 438 N.E.2d 402; People v. Barbaran, 118 A.D.2d 578, 499 N.Y.S.2d 186, lv. denied 67 N.Y.2d 1050, 504 N.Y.S.2d 1025, 495 N.E.2d 358). The indictment charged the defendant with forcibly stealing currency from one Jean LeRoy. At trial, the People established that the defendant and an accomplice took money from the cash register at the Chez Price restaurant at gunpoint. Although LeRoy did not testify at trial, Pierre Charles, an employee of the restaurant, testified that LeRoy was the owner of the restaurant at the time of the crime. Consequently, after reading the language of the indictment, the court instructed the jury that in order to find the defendant...