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

143
KA 11-02191
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROGER COONEY, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, MULDOON, GETZ & RESTON
(JON P. GETZ OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered July 1, 2011. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the facts, the indictment is dismissed and the matter is
remitted to Monroe County Court for proceedings pursuant to CPL
470.45.

     Memorandum: In appeal No. 1, defendant was convicted following a
jury trial of robbery in the first degree (Penal Law § 160.15 [3])
and, in appeal No. 2, he was convicted following the same jury trial
of robbery in the second degree (§ 160.10 [2] [a]). The charges arose
from separate incidents in which defendant took merchandise without
paying for it and, when confronted by the asset protection personnel
outside of each store, he engaged in activity that resulted in the
indictments charging these robbery offenses. Contrary to defendant’s
contention, Supreme Court (Valentino, J.) did not abuse its discretion
in granting the People’s motion to consolidate the indictments (see
People v Bankston, 63 AD3d 1616, 1616-1617, lv denied 14 NY3d 885).
The court properly determined that the indictments were joinable
pursuant to CPL 200.20 (5), that the nature and quantity of the
evidence for each offense was comparable, and that defendant failed to
make a convincing showing that he had important testimony to give with
respect to the indictment charging robbery in the second degree and a
strong need to refrain from testifying with respect to the indictment
charging robbery in the first degree (see Bankston, 63 AD3d at 1616-
1617).

     We reject defendant’s further contention that the court erred in
refusing to suppress evidence seized from defendant following a
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                                                         KA 11-02191

traffic stop. Defendant’s vehicle was observed in an empty parking
lot by police two days after the second offense was committed and,
when the police approached the vehicle, defendant drove away. The
court properly determined that the officer who stopped defendant’s
vehicle was authorized to act on the strength of the information
conveyed by another police agency of the description of the vehicle
and the very distinctive license plate under the “fellow officer” rule
(see generally People v Rosario, 78 NY2d 583, 588, cert denied 502 US
1109; People v Robinson, 134 AD3d 1538, 1539). Contrary to
defendant’s contention that the officer lacked reasonable suspicion to
stop the vehicle, we conclude that “the distinctive nature of the
vehicle is a significant factor that provided the police with
reasonable suspicion that defendant may have been involved in the
robbery” (People v Dearmas, 48 AD3d 1226, 1227, lv denied 10 NY3d 839
[internal quotation marks omitted]).

     We reject defendant’s contention that the conviction of robbery
in the first degree is not supported by legally sufficient evidence.
The evidence, when viewed in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), established that defendant
was observed by two employees through video surveillance secreting in
the waistband of his pants two packages of Dr. Scholls shoe inserts,
and secreting in his front pants pocket a package of Hillshire Farms
sausages, and then leaving the store without paying for those items.
When store employees confronted defendant in the parking lot, one of
the employees observed the packages of shoe inserts when defendant
lifted his shirt and observed a bulge in his pants pocket consistent
with the package of sausage. Defendant waved a knife with a 2- to 3-
inch blade at that employee when the employee demanded that he return
the merchandise before he entered his car and drove away. Contrary to
defendant’s contention, the employee named in the indictment as the
owner of the property had a possessory right superior to that of
defendant, “who had no right of possession whatsoever” (People v
Hutchinson, 56 NY2d 868, 869; see People v Sweney, 55 AD3d 1350, 1351,
lv denied 11 NY3d 901; cf. People v Wilson, 93 NY2d 222, 225-226). We
reject defendant’s contention that the People failed to prove the
element of “uses or threatens the immediate use of a dangerous
instrument” (Penal Law § 160.15 [3]). Video evidence established that
defendant was detained by the employee in the parking lot immediately
after he left the store, at which time he retained the property by
threatening the use of the knife (see People v Gordon, 23 NY3d 643,
652 n 4; People v Carrel, 99 NY2d 546, 547-548). Although the items
were not recovered, the evidence is legally sufficient to establish
that defendant forcibly retained them (see Gordon, 23 NY3d at 652).
By failing to move to dismiss the indictment on the ground that the
knife did not constitute a dangerous instrument, defendant failed to
preserve that contention for our review (see People v Williams, 125
AD3d 1300, 1301, lv denied 26 NY3d 937). In any event, that
contention is without merit (see People v Simmons, 128 AD3d 1379,
1379, lv denied 26 NY3d 935). Viewing the elements of the crime 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
with respect to robbery in the first degree (see generally People v
Bleakley, 69 NY2d 490, 495).
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                                                         KA 11-02191

      We agree with defendant, however, that the verdict with respect
to the count of robbery in the second degree is against the weight of
the evidence on the element of physical injury. We therefore reverse
the judgment in appeal No. 2 and dismiss that indictment. An employee
testified that, as a result of a physical struggle with defendant
after he was detained, the employee sustained a cut on the knuckle of
his left ring finger, which he treated with an antibiotic ointment and
a bandage for one week. “Physical injury” is defined as an
“impairment of physical condition or substantial pain” (Penal Law
§ 10.00 [9]). “Factors relevant to an assessment of substantial pain
include the nature of the injury, viewed objectively, the victim’s
subjective description of the injury and his or her pain, whether the
victim sought medical treatment, and the motive of the offender”
(People v Haynes, 104 AD3d 1142, 1143, lv denied 22 NY3d 1156
[emphasis added]; see People v Chiddick, 8 NY3d 445, 447). The
employee testified that the cut was “very painful,” that the pain,
which subsided the day after the incident, lasted a few days, and that
the cut was completely healed in one week. He testified that he did
not seek medical treatment and did not miss any time from his job as a
result of the injury. Upon the exercise of our “special power . . .
to affirmatively review the record; independently assess all of the
proof; substitute [our] own credibility determinations for those made
by the jury . . . ; [and] determine whether the verdict was factually
correct,” we conclude that the element of physical injury was not
proved beyond a reasonable doubt (People v Delamota, 18 NY3d 107, 116-
117; see People v Facey, 115 AD2d 11, 18, affd 69 NY2d 836; People v
Ferrer, 84 AD3d 1396, 1396-1397; see generally Matter of Philip A., 49
NY2d 198, 200). We thus conclude that the jury “failed to give the
evidence the weight that it should be accorded” (Bleakley, 69 NY2d at
495).

     We respectfully disagree with our dissenting colleague that a
conviction may be reduced to a lesser included offense upon a
determination that the verdict is against the weight of the evidence.
As we explained in People v Heatley (116 AD3d 23, 29, appeal dismissed
25 NY3d 933), “CPL 470.20 (5) provides that the determination by an
intermediate appellate court that a verdict is against the weight of
the evidence requires dismissal of the indictment . . . [T]he power to
reduce a conviction to a lesser included offense is limited to cases
in which it is determined that the evidence ‘is not legally sufficient
to establish the defendant’s guilt of an offense of which he [or she]
was convicted but is legally sufficient to establish his [or her]
guilt of a lesser included offense’ (CPL 470.15 [2] [a]).” Thus, we
conclude that “CPL 420.20 (5) requires dismissal of the indictment if
it is determined that the verdict is against the weight of the
evidence” (id. at 31). Indeed, the Court of Appeals has explained
that “[a]n important judicial bulwark against an improper criminal
conviction is not only the restrictive scope of review undertaken
during a sufficiency analysis, but the protection provided by weight
of the evidence examination in an intermediate appellate court. This
special power requires the court to . . . determine whether the
verdict was factually correct[,] and acquit a defendant if the court
is not convinced that the jury was justified in finding that guilt was
proven beyond a reasonable doubt” (Delamota, 18 NY3d at 116-117
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                                                         KA 11-02191

[emphasis added]; see People v Romero, 7 NY3d 633, 644 n 2). As we
explained in Heatley (116 AD3d at 30), “if the legislature had
intended to provide the same relief to modify a judgment in the event
that the weight of the evidence failed to support the conviction but
supported a lesser included offense, it would have done so.”

     In light of our determination, defendant’s contention that
certain evidence related to this offense should have been precluded is
academic.

     Defendant further contends that he was penalized for exercising
his right to trial when County Court (Castro, A.J.) sentenced him to a
harsher sentence than that allegedly offered by the court at the close
of the People’s proof. We are unable to review that contention
because the record is silent with respect to whether a plea offer was
made, and thus it must be raised by way of a motion pursuant to CPL
440.10 (see People v Robinson, 221 AD2d 1029, 1029). We note,
however, that “there is no indication in the record before us that the
sentencing court acted in a vindictive manner based on defendant’s
exercise of the right to a trial” (People v Brink, 78 AD3d 1483, 1485,
lv denied 16 NY3d 742, reconsideration denied 16 NY3d 828). The
sentence is not unduly harsh and severe.

     All concur except CENTRA and LINDLEY, JJ., who dissent and vote to
modify in accordance with the following memorandum: We respectfully
dissent in appeal No. 2. Although we agree with the majority that the
verdict with respect to robbery in the second degree under Penal Law §
160.10 (2) (a) is against the weight of the evidence because the
People failed to prove beyond a reasonable doubt that the victim
sustained a physical injury during the commission of the crime or
defendant’s immediate flight therefrom, we do not agree that the
indictment should be dismissed. Instead, in our view, the conviction
should be reduced to the lesser included offense of robbery in the
third degree (§ 160.05). For the reasons stated in the concurrence in
People v Heatley (116 AD3d 23, 32-39, appeal dismissed 25 NY3d 933),
we see no reason in law or logic that a conviction may not in a proper
case be reduced to a lesser included offense upon a determination that
the verdict is against the weight of the evidence with respect to a
particular element of the charged crime (see e.g. People v Santiago,
97 AD3d 704, 706-707, affd 22 NY3d 740), just as we reduce a
conviction that is not based on legally sufficient evidence.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
