People v. Snow

• Decision Date: 17 July 2020
• Docket Number: KA 16-01584,257
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard L. SNOW, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1400
128 N.Y.S.3d 114

The PEOPLE of the State of New York, Respondent,
v.
Bernard L. SNOW, Defendant-Appellant.

257
KA 16-01584

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

Entered: July 17, 2020

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (THOMAS G. SMITH OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

185 A.D.3d 1400

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of robbery in the third degree under count

185 A.D.3d 1401

one of the indictment and vacating the sentence imposed on count two of the indictment, and as modified the judgment is affirmed, a new trial is granted on count one of the indictment, and the matter is remitted to Supreme Court, Monroe County, for resentencing on count two of the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of robbery in the third degree ( Penal Law § 160.05 ) and one count of petit larceny (§ 155.25). Defendant's conviction stems from three separate

128 N.Y.S.3d 116

incidents, which occurred on three consecutive days. During each incident, defendant entered a different bank and stole cash from a bank employee after presenting the employee with a note demanding money.

Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of robbery in the third degree under count two of the indictment, which concerns the second incident. " ‘The applicable statutes do not require the use or display of a weapon nor actual injury or contact with a victim [for a person to be guilty of robbery] ... All that is necessary is that there be a threatened use of force ..., which may be implicit from the defendant's conduct or gleaned from a view of the totality of the circumstances’ " ( People v. Mosley , 59 A.D.3d 961, 961, 872 N.Y.S.2d 825 [4th Dept. 2009], lv denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009], reconsideration denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009] ; see Penal Law §§ 160.00, 160.05 ; People v. Parris , 74 A.D.3d 1862, 1863, 903 N.Y.S.2d 925 [4th Dept. 2010], lv denied 15 N.Y.3d 854, 909 N.Y.S.2d 32, 935 N.E.2d 824 [2010] ). We conclude with respect to count two that "the People presented evidence from which defendant's threatened use of force could be implied" ( Parris , 74 A.D.3d at 1863, 903 N.Y.S.2d 925 [internal quotation marks omitted]; see Mosley , 59 A.D.3d at 962, 872 N.Y.S.2d 825 ). Additionally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict with respect to count two is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; Mosley , 59 A.D.3d at 962, 872 N.Y.S.2d 825 ).

We also reject defendant's contention that the verdict is against the weight of the evidence with respect to his conviction of robbery in the third degree under count one, which concerns the first incident. Contrary to defendant's contention, the precise wording of the note that defendant presented to the bank employee in that incident is not dispositive. Indeed, Penal Law § 160.00 "does not require the use of any words whatsoever, but merely that there be a threat, whatever its nature, of the immediate use of physical force," nor does it require a defendant to "employ what by...