People v. Timmons

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered March 16, 2005. The judgment convicted defendant, following a nonjury trial, of robbery in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial, of robbery in the second degree (Penal Law § 160.10 [2] [b]). Defendant failed to move for a trial order of dismissal and thus failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence based on the People’s failure to establish that he displayed what appeared to be a firearm (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). According to the testimony of a bank employee, defendant pointed a gun at the bank tellers and yelled that he would “kill everybody” if the tellers did not give him the money. We thus conclude that the People established that defendant displayed what appeared to the bank employee to be a firearm (see Penal Law § 160.10 [2] [b]; People v Giordano, 296 AD2d 714, 716 [2002], lv denied 99 NY2d 582 [2003]). Contrary to defendant’s further contention, the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Present—Hurlbutt, J.P., Martoche, Fahey, Green and Gorski, JJ.