People v. Martinez , 631 N.Y.S.2d 869 ( 1995 )

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Goldstein, J.), rendered June 9, 1994, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court erred in submitting the charge of robbery in the first degree to the jury because he established the affirmative defense that the object he displayed was not a loaded weapon (see, Penal Law § 160.15 [4]). The court properly denied the defendant’s motion to dismiss that count as he failed to prove the affirmative defense as a matter of law.

"In order to satisfy the '[displays what appears to be a * * * firearm’ element of Penal Law § 160.15 (4), the evidence must establish that the defendant * * * consciously displayed something which could reasonably be perceived as a firearm, with the intent of forcibly taking property from another, and that the victim actually perceived that display” (People v Jackson, 180 AD2d 756; see, People v Lopez, 73 NY2d 214, 220). Moreover, the object displayed need not closely resemble a firearm or bear a distinctive shape, but rather, the display "must actually be witnessed in some manner by the victim, i.e., it must appear to the victim by sight, touch, or sound that he or she is threatened by a firearm” (People v Jackson, supra at 756; see, People v Lopez, supra).

Here, the victim testified that the defendant approached him, asked for his money, told him that he had a gun and put his hand in his pocket. The defendant pointed at the victim through his pocket and acted as if he had a gun. Although the defendant’s accomplice testified that the defendant was carrying a beer bottle in his pocket and that the defendant told the victim that it was a gun, the accomplice also testified that he did not know if the defendant was carrying a gun in addition to the beer bottle and that the defendant said he had a gun in his pocket. The arresting officer did not find a gun in the defendant’s possession; however, the arrest occurred approximately one-half hour after the crime. Thus, the court properly submitted the count of robbery in the first degree to the jury.

We disagree with our dissenting colleague that the defendant’s conviction of robbery in the first degree was against the weight of the evidence. The victim’s testimony was sufficient to establish the elements of the crime beyond a reasonable doubt. The proof of the affirmative defense depended upon the credibility of the accomplice’s testimony with respect to the beer bottle, which testimony the jury could have rejected. Moreover, the prosecutor’s summation comment with respect to the affirmative defense did not deprive the defendant of a fair trial as the court, in its charge, instructed the jury that if the defendant met his burden of proving by a preponderance of the evidence that what was displayed was not a loaded gun, then he could not be found guilty of robbery in the first degree.

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). His remaining contentions are either unpreserved for appellate review or without merit. O’Brien, J. P., Santucci and Joy, JJ., concur.