People v. Moye , 154 A.D.3d 546 ( 2017 )

People v Moye (2017 NY Slip Op 07319)

People v Moye

2017 NY Slip Op 07319

Decided on October 19, 2017

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 October 19, 2017
Acosta, P.J., Friedman, Webber, Oing, Moulton, JJ.

4735 950/13

[*1]The People of the State of New York, Respondent,

v

Arnold Moye, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered November 10, 2015, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 11 years, with five years' postrelease supervision, unanimously affirmed.

Viewed as a whole, including the supplemental instructions, we find that the court's instructions conveyed the correct standard on the crime of first-degree robbery, including the element of the threatened use of a dangerous instrument (see Penal Law § 160.15[3]; People v Ladd, 89 NY2d 893, 895-896 [1996]; see also People v Melendez, 242 AD2d 493, 494 [1st Dept 1997]). The court properly explained that display of an instrument alone is not enough, and that display of the instrument must be accompanied by circumstances that convey a threat of immediate use (see People v Pena, 50 NY2d 400, 407 n 2 [1980], cert denied 449 US 1087 [1981]; People v Sharma, 112 AD3d 494, 495 [1st Dept 2013], lv denied 23 NY3d 1025 [2014]).

The positioning of a court officer behind defendant when he testified was minimally intrusive and did not deprive defendant of a fair trial (see People v Gamble, 18 NY3d 386, 397 [2012]). In any event, if there was error involving the court's decision on courtroom security, it was harmless given the overwhelming evidence of guilt (see People v Clyde, 18 NY3d 145, 153-154 [2011], cert denied 566 US 944 [2012]; People v Lucas, 131 AD3d 875, 876 [1st Dept 2015], lv denied 26 NY3d 1090 [2015]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 19, 2017

CLERK