People v. Soares

• Decision Date: 11 January 2011
• Citation: 80 A.D.3d 631,914 N.Y.S.2d 658
• Parties: The PEOPLE, etc., respondent, v. David SOARES, appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 658 80 A.D.3d 631 The PEOPLE, etc., respondent, v. David SOARES, appellant. Supreme Court, Appellate Division, Second Department, New York. Jan. 11, 2011.

Steven Banks, New York, N.Y. (Svetlana M. Kornfeind of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Jaclyn Belson of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered January 26, 2009, convicting him of robbery in the first degree, criminal possession of stolen property in the fifth degree, resisting arrest, and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence adduced at trial established that the defendant held a box cutter to the victim's neck with one hand while, withhis other hand and arm, he beat the victim, rifled through his pockets, and stole his property.

Viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), this evidence was legally sufficient to establish the defendant's guilt of robbery in the first degree based on the use or threat of immediate use of a dangerous instrument ( see Penal Law § 160.15[3]; People v. Mitchell, 59 A.D.3d 739, 740, 874 N.Y.S.2d 226; People v. Prior, 23 A.D.3d 1076, 804 N.Y.S.2d 877; People v. Nelson, 10 A.D.3d 565, 782 N.Y.S.2d 75; People v. Elliot, 298 A.D.2d 290, 748 N.Y.S.2d 745; People v. Danzler, 288 A.D.2d 5, 732 N.Y.S.2d 157; People v. Thompson, 273 A.D.2d 153, 710 N.Y.S.2d 333; People v. Anderson, 204 A.D.2d 191, 192, 612 N.Y.S.2d 25). The evidence also was legally sufficient to establish his guilt of criminal possession of a weapon in the fourth degree ( see Penal Law § 265.01[2]; Matter of Sean R., 33 A.D.3d 925, 925-926, 824 N.Y.S.2d 302). Under the circumstances, the box cutter was properly found to be a dangerous instrument ( see Penal Law § 10.00[13]; People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30; People v. Williams, 118 A.D.2d 609, 610, 499 N.Y.S.2d 452). Upon the exercise of our factual review power ( see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

RIVERA, J.P., DICKERSON, LOTT and SGROI, JJ., concur.