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

1178
KA 10-01213
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LARRY J. WILLIAMS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered July 8, 2008. 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
unanimously affirmed.

     Memorandum: Defendant was convicted following a jury trial of
robbery in the second degree (Penal Law § 160.10 [2] [b]) for robbing
a bank while holding his hand in his sweatshirt pocket and informing a
teller that he had a gun. Defendant failed to preserve for our review
his contention that the evidence is legally insufficient to establish
that the victim perceived the “display” of a weapon (see People v
Gray, 86 NY2d 10, 19). In any event, there is no merit to that
contention. To establish the “display” element of the robbery
statute, “[t]he People must show 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; see
People v Baskerville, 60 NY2d 374, 381). “[T]he display requirement
has been broadly construed to cover a wide range of actions which
might reasonably create the impression in the mind of the victim that
the robber is armed with a firearm” (Lopez, 73 NY2d at 220-221; see
Baskerville, 60 NY2d at 381-382). Thus, it has been held that a hand
consciously concealed in clothing may satisfy the display requirement
“if under all the circumstances the defendant’s conduct could
reasonably lead the victim to believe that a gun is being used during
the robbery” (Lopez, 73 NY2d at 220; see People v Middleton, 247 AD2d
713, 713, lv denied 92 NY2d 856). Upon our review of the record, we
conclude that the evidence is legally sufficient to establish that the
victim perceived that defendant displayed what appeared to be a
                                 -2-                         1178
                                                        KA 10-01213

firearm during the course of the robbery (see Lopez, 73 NY2d at
221-222; Middleton, 247 AD2d at 713-714). Furthermore, although a
finding that defendant did not display a firearm would not have been
unreasonable (see generally People v Bleakley, 69 NY2d 490, 495), we
conclude that, upon viewing the evidence in light of the elements of
the crime of robbery in the second degree, it cannot be said that the
jury failed to give the evidence the weight it should be accorded (see
generally People v Danielson, 9 NY3d 342, 349; Bleakley, 69 NY2d at
495).

     We further conclude that the sentence is not unduly harsh or
severe. Contrary to defendant’s contention, “the fact that [Supreme
Court] imposed a more severe sentence after trial than that offered
during plea negotiations does not demonstrate that defendant was
punished for exercising his right to a trial” (People v McCallum, 96
AD3d 1638, 1640).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
