        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

246
KA 14-00479
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRENCE D. BEARD, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered February 24, 2014. The judgment
convicted defendant, upon a jury verdict, of robbery in the second
degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of two counts of robbery in the second degree
(Penal Law § 160.10 [1], [2] [b]). We reject defendant’s contention
that the verdict is against the weight of the evidence. A person is
guilty of robbery in the second degree when he forcibly steals
property and he either “is aided by another person actually present,
or . . . [i]n the course or commission of the crime . . . , he or
another participant in the crime . . . [d]isplays what appears to be a
pistol, revolver, rifle, shotgun, machine gun, or other firearm”
(id.). Here, the victim testified that defendant forcibly stole
property from him and handed it to an accomplice who fled (see
generally People v Leggett, 101 AD3d 1694, 1694, lv denied 20 NY3d
1101). The victim also testified that defendant offered to sell him a
gun that was “cocked and loaded,” that defendant’s hand was in a
pocket that appeared to contain a firearm, and that he believed that
defendant in fact had a firearm (see People v Williams [appeal No. 2],
100 AD3d 1444, 1445, lv denied 20 NY3d 1015; People v Williams, 286
AD2d 918, 918, lv denied 97 NY2d 763). Viewing the evidence in light
of the elements of the two counts of robbery in the second degree as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant’s contention that the victim’s testimony was motivated
                                 -2-                              246
                                                            KA 14-00479

by the victim’s desire to be released from prison is based on matters
outside the record and therefore must be raised by way of a motion
pursuant to CPL 440.10 (see generally People v Broomfield, 134 AD3d
1443, 1445, Iv denied 27 NY3d 1129).

     Defendant’s further contention that the evidence presented at
trial materially changed the theory of the prosecution, as charged in
the indictment and narrowed by the bill of particulars, is unpreserved
for our review. In any event, we conclude that the contention is
without merit. Although the bill of particulars stated that one man
removed property from the victim while the other man displayed the
gun, the evidence presented at trial established that defendant
performed both of those actions. In our view, the discrepancy does
not amount to a material change in the theory of the prosecution but
constitutes merely an alteration in a “ ‘factual incident’ ” that is
still consistent with the theory presented in the bill of particulars
(People v Harris, 129 AD3d 1522, 1524, lv denied 27 NY3d 998; see
People v McCallar, 53 AD3d 1063, 1065, lv denied 11 NY3d 833; see also
People v Grega, 72 NY2d 489, 495).

     We reject defendant’s contention that he was denied effective
assistance of counsel because his attorney failed to request a jury
instruction on the lesser included offense of robbery in the third
degree (Penal Law § 160.05). “A lesser [included] offense must be
submitted to the jury if (1) it is actually a lesser included offense
of the greater charge, and (2) the jury is ‘warranted in finding that
the defendant committed the lesser but not the greater crime’ . . . ,
i.e., there is a ‘reasonable view of the evidence’ to support such a
finding” (People v Cabassa, 79 NY2d 722, 728-729, cert denied sub nom.
Lind v New York, 506 US 1011; see CPL 300.50). Here, there is no
reasonable view of the evidence to support a finding that defendant
was not aided by another individual, and thus, it would have been
fruitless for counsel to request that the jury be charged with the
lesser included offense of robbery in the third degree (see generally
People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Viewing
the evidence, the law, and the circumstances of this case, in totality
and as of the time of the representation, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

      Defendant’s contentions that the indictment is facially
duplicitous and that he was denied a fair trial owing to the
prosecutor’s elicitation of a prejudicial nickname are unpreserved for
our review, and we decline to exercise our power to review them as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).

     Finally, the sentence is not unduly harsh or severe.



Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
