| People v Johnson |
| 2016 NY Slip Op 01601 |
| Decided on March 8, 2016 |
| 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 March 8, 2016
Friedman, J.P., Acosta, Renwick, Richter, JJ.
425 4072/12
v
Phillip Johnson, Defendant-Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph Nursey of counsel) and Jones Day, New York (Jie Gao of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Laura Higgins of counsel), for respondent.
Judgment, Supreme Court, New York County (Melissa Jackson, J.), rendered June 10, 2013, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.
The court properly denied defendant's request to charge petit larceny as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he took property without the use of force. The jury would have had no basis for finding that defendant's taking of some of the victim's property was a nonforcible larceny, separate from defendant's undisputed use of force in an unsuccessful attempt to take the victim's laptop during the same attack.
Since defendant's proposed responses to a note from the deliberating jury (i.e., a one-word answer or, alternatively, a verbatim reading of the pertinent portion of the original charge) were completely different from the position he takes on appeal, defendant has not preserved his claim that the court's response provided inadequate guidance (see e.g. People v Green, 134 AD3d 501 [1st Dept 2015]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court responded meaningfully to the jury's question by accurately re-explaining the elements of robbery (see People v Almodovar, 62 NY2d 126, 131 [1984]; People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 U.S. 847 [1982]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 8, 2016
DEPUTY CLERK