People v. McBroom , 20 N.Y.S.3d 366 ( 2015 )

People v McBroom (2015 NY Slip Op 08974)

People v McBroom

2015 NY Slip Op 08974

Decided on December 8, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2015
Tom, J.P., Friedman, Saxe, Gische, JJ.

16351 3027/13

[*1] The People of the State of New York, Respondent,

v

Shombe McBroom, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 5, 2014, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). The evidence established that when defendant used force against store employees, his intent was, at least in part, to overcome resistance to his retention of stolen merchandise (see generally People v Gordon, 23 NY3d 643, 649-651 [2014]).

Moreover, since there was not even a reasonable view of the evidence, viewed most favorably to defendant, that he used force solely to escape, the court properly denied his request for submission of the lesser included offense of petit larceny (see People v Durden, 5 AD3d 333 [1st Dept 2004], lv denied 2 NY3d 798 [2004]). At no time during the struggle at the store did defendant relinquish the stolen property, which he dropped only after he had already escaped from the store and was fleeing into a subway station. There was no evidence in the testimony of the People's witnesses or defendant, or in a videotape, supporting any reasonable view that defendant attempted to surrender the merchandise at the store. In any event, defendant did not, in fact, surrender the merchandise, but fled with it.

The court properly adjudicated defendant a second felony offender. Since defendant's challenge to his predicate conviction was limited to a meritless claim that it was not actually a felony conviction, he failed to preserve his present claim that the conviction was unconstitutionally obtained, and we decline to review it in the interest of justice. As an alternative holding, we find that there was no basis for finding

that the prior plea was involuntary, or for conducting a hearing on that issue (see generally People v Konstantinides, 14 NY3d 1, 15 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2015

CLERK