People v. Agha

Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that County Court erred in failing to submit robbery in the third degree and petit larceny to the jury as lesser included offenses of robbery in the first degree. At trial, defense counsel opposed the prosecutor’s request that the court submit robbery in the third degree, and defendant therefore waived his present contention with respect to the charge (see, People v Adams, 205 AD2d 548, 549, lv denied 83 NY2d 1002). Further, although petit larceny is a lesser included offense of robbery in the first degree (see, People v Smith, 214 AD2d 971, lv denied 86 NY2d 847), there is no reasonable view of the evidence that would support a finding that defendant stole the victim’s property without the use of force (see, People v Hickey, 162 AD2d 708, lv denied 76 NY2d 858; People v Bailey, 155 AD2d 982, lv denied 75 NY2d 866; People v White, 121 AD2d 762, lv denied 68 NY2d 774).

The court properly admitted evidence that prosecution witnesses had been threatened by defendant (see, People v King, 175 AD2d 266, lv denied 79 NY2d 828) and defendant’s brother (see, People v Griffin, 126 AD2d 743, 743-744, lv denied 69 NY2d 880). Defendant’s motion to dismiss the indictment in furtherance of justice was properly denied as untimely (see, People v Field, 161 AD2d 660, 661) and on the ground that there is no "compelling factor, consideration or circumstance” to warrant that extraordinary relief (CPL 210.40 [1]; see, People v Loria, 214 AD2d 1043, 1044; People v Field, supra, at 661). Because the court imposed the minimum sentence authorized for a class B violent felony, there is no basis for the exercise of our authority to reduce the sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Erie County Court, D’Amico, J.—Robbery, 1st Degree.) Present—Green, J. P., Pine, Lawton, Callahan and Fallon, JJ.