                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    106993
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DON-LEE GRAYSON,
                    Appellant.
________________________________


Calendar Date:   February 10, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Clark, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 7, 2014, upon a verdict convicting
defendant of the crime of robbery in the first degree.

      Following a jury trial, defendant was convicted of robbery
in the first degree and sentenced to a prison term of 10 years,
followed by five years of postrelease supervision. He was also
ordered to pay restitution in the amount of $2,095, along with a
5% surcharge. Defendant now appeals.

      Defendant argues that County Court should have granted his
request to charge the jury on the lesser included offense of
robbery in the third degree. To establish entitlement to a
lesser included offense charge, a defendant must demonstrate
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that, "in all circumstances, . . . it is impossible to commit the
greater crime without concomitantly, by the same conduct,
committing the lesser offense" and, secondarily, that "there is a
reasonable view of the evidence . . . that would support a
finding that he [or she] committed the lesser offense but not the
greater" (People v Glover, 57 NY2d 61, 63 [1982]; see CPL 1.20
[37]; 300.50 [1]; People v Davis, 14 NY3d 20, 22-23 [2009]).
Here, the People properly concede that it is impossible to commit
robbery in the first degree without also committing robbery in
the third degree (see Penal Law §§ 160.05, 160.15 [4]) and, thus,
the parties disagree solely as to whether the second prong of the
inquiry was satisfied.

      In evaluating whether there is a reasonable view of the
evidence that would support a finding that a defendant committed
only the lesser offense, we must view the evidence in the light
most favorable to the defendant (see People v Rivera, 23 NY3d
112, 120-121 [2014]; People v Martin, 59 NY2d 704, 705 [1983];
People v Green, 56 NY2d 427, 434 [1982]). A lesser included
offense charge may not be given unless "'there is . . . some
identifiable, rational basis on which the jury could reject a
portion of the prosecution's case which is indispensable to
establishment of the higher crime and yet accept so much of the
proof as would establish the lesser crime'" (People v Rivera, 23
NY3d at 121, quoting People v Scarborough, 49 NY2d 364, 369-370
[1980]; accord People v Lora, 85 AD3d 487, 492 [2011], appeal
dismissed 18 NY3d 829 [2011]). As relevant here, a conviction
for robbery in the third degree requires proof that the defendant
"forcibly st[ole] property" (Penal Law § 160.05), while a
conviction for robbery in the first degree requires proof that
the defendant "forcibly st[ole] property" and, in the course of
doing so, "[d]isplay[ed] what appear[ed] to be a . . . firearm"
(Penal Law § 160.15 [4]). To satisfy the display requirement,
all that is required is a "show[ing] that the defendant
consciously displayed something that could reasonably be
perceived as a firearm, with the intent of forcibly taking
property, and that the victim actually perceived the display"
(People v Lopez, 73 NY2d 214, 220 [1989]; see People v
Baskerville, 60 NY2d 374, 381 [1983]; People v Colon, 116 AD3d
1234, 1236 [2014], lv denied 24 NY3d 959 [2014]; CJI2d[NY] Penal
Law § 160.15 [4]). "[T]he object displayed need not closely
                              -3-                106993

resemble a firearm or bear a distinctive shape" and "even a hand
consciously concealed in clothing may suffice, if under all the
circumstances the defendant's conduct could reasonably lead the
victim to believe that a gun [was] being used during the robbery"
(People v Lopez, 73 NY2d at 220; see People v Colon, 116 AD3d at
1236; People v Welsh, 80 AD3d 456, 456 [2011], lv denied 16 NY3d
864 [2011]).

      At trial, the bank teller testified that defendant entered
the bank wearing a "ski mask" and a "pulled-down, dark ball cap,"
approached her teller station and slid her a note demanding five
$100 bills and directing her "not to do anything stupid and that
there was a gun." She stated that defendant immediately placed
his hands in his pockets and that, although she never saw a gun,
she believed defendant to have one because, "[t]hroughout the
robbery, . . . both of his hands were in his pocket[s] pushed
forward." The bank's comprehensive surveillance footage
corroborated the victim's testimony that defendant slid her a
note and then put both of his hands in his pockets. Viewing the
evidence in the light most favorable to defendant, there is no
reasonable view of the evidence that could lead to the conclusion
that it was unreasonable for the bank teller to believe that
defendant had a gun, given his conduct of concealing his face
during the robbery, indicating by note that he had a gun and
thereafter consciously placing his hands in his pockets (see
People v James, 11 NY3d 886, 887-888 [2008]; People v Ruiz, 216
AD2d 63, 63-64 [1995], affd 87 NY2d 1027 [1996]). Accordingly,
County Court did not err in refusing to charge the jury on the
lesser included offense of robbery in the third degree.

      We also disagree with defendant's contention that County
Court incorrectly instructed the jury that, if the People proved
beyond a reasonable doubt that defendant was in exclusive
possession of money recently stolen during a robbery, then it was
permitted, but not required, to infer that defendant's possession
resulted from his participation in the robbery. Here, the
evidence revealed that the bank teller included a red-dye pack in
the envelope of money that she gave to defendant, that defendant
visited a bank roughly two weeks after the robbery and attempted
to exchange red-dyed money for "clean" money, that defendant paid
his rent with "red-tinted" $50 bills two weeks after he was
                              -4-                  106993

unable to exchange the dyed money and that a particular red dye
and tear gas combination used exclusively in bank dye packs was
found on those $50 bills. This evidence could justify an
inference that defendant was guilty of the robbery and, contrary
to defendant's assertions, was not so far removed in time or
otherwise tenuous so as to render the recent and exclusive
possession charge improper (see generally People v Baskerville,
60 NY2d at 383; People v Galbo, 218 NY 283, 291 [1916]).
Therefore, County Court acted within its discretion in giving the
exclusive possession of property recently stolen charge to the
jury over defendant's objection.

     Peters, P.J., Garry, Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
