People v. Gilmore

Judgment, Supreme Court, New York County (James Leff, J.), rendered March 5, 1996, convicting defendant, after a jury trial, of robbery in the first degree and grand larceny in the fourth degree, and sentencing him, as a persistent violent felony offender, to a term of 15 years to life, and, as a second felony offender, to a concurrent term of 2 to 4 years, unanimously affirmed.

The court correctly instructed the jury on the concept of displaying what appears to be a weapon (Penal Law § 160.15 [4]; People v Lopez, 73 NY2d 214; People v Smith, 182 AD2d 725, 728-729, lv denied 80 NY2d 896). Defendant’s remaining claims are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would find that the court adequately informed the jury of the difference between first- and third-degree robbery, as well as the circumstances under which the lesser included offense was to be considered, and that the court meaningfully responded to jury notes by rereading its original instructions (see, People v Malloy, 55 NY2d 296, cert denied 459 US 847), while appropriately remaining within the bounds of the jury’s specific requests (People v Almodovar, 62 NY2d 126, 132).

We perceive no abuse of discretion in sentencing, and conclude that the sentence was not based on any improper criteria. Concur—Milonas, J. P., Rosenberger, Wallach, Williams and Mazzarelli, JJ.