People v. Castro , 849 N.Y.S.2d 208 ( 2007 )

Judgement Supreme Court, New York County (Maxwell Wiley, J.), rendered June 1, 2007, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s credibility determinations (see People v Bleakley, 69 NY2d 490 [1987]). The evidence established that defendant displayed what appeared to be a weapon when he gestured with his hand in his pocket and threatened to shoot the victim.

The court properly declined to submit third-degree robbery and petit larceny as lesser included offenses of robbery in the first and second degrees, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he took the victim’s property by means of some other kind of force than display of what appeared to be a firearm, or without any force (see e.g. People v Peaks, 297 AD2d 578 [2002], lv denied 99 NY2d 562 [2002]).

The court properly exercised its discretion in denying defendant’s mistrial motion based on portions of the People’s summation. We find that nothing in the summation deprived defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.