People v. Villanueva

• Decision Date: 16 February 2017
• Citation: 148 A.D.3d 210,2017 N.Y. Slip Op. 01299,46 N.Y.S.3d 615
• Parties: The PEOPLE of the State of New York, Respondent, v. Carolina VILLANUEVA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 210
46 N.Y.S.3d 615
2017 N.Y. Slip Op. 01299

The PEOPLE of the State of New York, Respondent,
v.
Carolina VILLANUEVA, Defendant–Appellant.

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

Feb. 16, 2017.

46 N.Y.S.3d 616

Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

ROLANDO T. ACOSTA, J.P., DIANNE T. RENWICK, RICHARD T. ANDRIAS, DAVID B. SAXE, JUDITH J. GISCHE, JJ.

ACOSTA, J.P.

148 A.D.3d 211

The main issue on appeal centers on the definition of threat of immediate use of force in the context of a robbery conviction (see Penal Law § 160.00 ). Defendant argues that the element of force was not established beyond a reasonable doubt with respect to her robbery in the second degree conviction (Penal Law § 160.10[1] ), because neither defendant nor her codefendant ever touched the complainant and

46 N.Y.S.3d 617

the threat of use of force was in fact not a threat of immediate harm. Rather, defendant contends, it was a threat of possible future harm, delivered by verbal threat indicating that calls were going to be made to others, and that the others, once notified, would come to the

148 A.D.3d 212

scene at some time in the future possibly to harm the complainant. We disagree, because the threat in this case was part of a chain of actions by defendant and her codefendant, by which they conveyed the impression that disobeying their demands would result in imminent physical harm. Defendant's other arguments are also meritless.

On December 6, 2012, at around 9:00 p.m., Carlos Diaz made a food delivery at an apartment building at 367 Madison Street in Manhattan. The entrance to the building was set back from the sidewalk by about one-half of a city block.

When Diaz arrived, he locked his bicycle outside the building and saw defendant and her codefendant, Ruby Verdi,¹ standing in front of an adjacent apartment building. As Diaz got to the front of 367 Madison Street, Verdi approached him and asked him if he wanted to have sex with her, and he responded no. Verdi followed Diaz as he entered the building and walked into the elevator.

Inside the elevator, Verdi grabbed Diaz's private parts and propositioned him for sex in exchange for $20. Diaz again refused the offer. Once Diaz had delivered the food and gotten back into the elevator to go downstairs, Verdi again followed him and grabbed him and told him to have sex with her. When Diaz again refused, Verdi told him that if he did not give her $20 dollars she was going to scream and that she would call the police and tell them that Diaz had tried to attack her.

When the elevator reached the ground floor, Diaz exited the building and walked toward his bicycle, with Verdi following behind. Defendant was standing near Diaz's bicycle, leaning against it, preventing him from unchaining it. Verdi told defendant that she had had sex with Diaz inside the elevator but Diaz did not want to pay her. Defendant told Diaz to pay Verdi, but Diaz refused to do so, denying that he had had sex with Verdi. Defendant demanded $20 from Diaz, telling him that if he did not pay, "she was going to call her boyfriend, he was a tall black guy, and he would beat [Diaz] up." She also threatened to call the police.

Diaz saw a black male exiting the adjacent apartment building, holding a cell phone. Defendant walked over to the man, and the two began to speak. Diaz could not hear the conversation, but he observed the man make a gesture with his cell

148 A.D.3d 213

phone as if he were about to call someone. At the same time, Verdi "grabbed" Diaz's bicycle, and prevented him from unchaining it.

Defendant returned to where Diaz was standing and told him "her boyfriend was coming over and they were going to bring more people to beat [him] up." Diaz became "scared," and gave Verdi $20. Defendant then demanded that Diaz give her $20 as well, and Diaz complied. The women then let Diaz go.

Diaz returned to the restaurant about two minutes later and reported the incident to his boss, who called the police. Approximately 30 minutes later, defendant and Verdi were arrested. As defendant was entering the patrol car, she dropped two $20 bills on the ground.

Defendant argues on appeal that the evidence was legally insufficient to establish her guilt of robbery in the second

46 N.Y.S.3d 618

degree and grand larceny in the fourth degree, and that, in the alternative, the jury's verdict was against the weight of the evidence. With respect to her robbery conviction, defendant argues that the People failed to demonstrate that she threatened Diaz with the immediate use of physical force, since she told Diaz that the man that was standing outside the adjacent building was going to call his friends to beat up Diaz, and that, "[s]ince the verbal threat, by its words, indicated that calls were going to be made to others, and that others, once notified, would come to the scene at some time in the future to possibly harm Diaz, it was not a threat of immediate harm."

With respect to her conviction of grand larceny in the fourth degree, defendant argues that "the evidence showed that Diaz fearfully but voluntarily ‘gave’ the cash to [defendant] from his hands," and thus defendant did not take property from Diaz's person. Accordingly, defendant contends that her conviction should be reduced to the lesser included offense of petit larceny.

A verdict is based upon legally sufficient evidence if "any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt" (People v. Cintron, 95 N.Y.2d 329, 332, 717 N.Y.S.2d 72, 740 N.E.2d 217 [2000] [internal quotation marks omitted] ). The court must view the evidence in the light most favorable to the People (People v. Kancharla, 23 N.Y.3d 294, 302, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

In reviewing the...