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

382
KA 10-00680
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELVIN ROIG, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered December 18, 2009. The judgment convicted
defendant, upon a nonjury verdict, of robbery in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him, upon a nonjury verdict, of robbery in the third degree
(Penal Law § 160.05) and, in appeal No. 2, he appeals from a judgment
convicting him upon his plea of guilty of burglary in the third degree
(§ 140.20). With respect to appeal No. 1, viewing the evidence in
light of the elements of the crime in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). “The evidence supports the conclusion
that defendant’s use of force against store employees was for the
purpose, at least in part, of retaining control of the stolen
merchandise that was in his possession, that he did not voluntarily
abandon any of the merchandise, and that he did not use force merely
for the purpose of escaping” (People v Nieves, 37 AD3d 277, 277, lv
denied 9 NY3d 848; see People v Thomas, 226 AD2d 120, 120, lv denied
88 NY2d 886; People v Miller, 217 AD2d 970, 970-971).

     “In view of our determination affirming the judgment in appeal
No. [1], we reject defendant’s contention that the judgment in appeal
No. [2] must be reversed on the ground that he pleaded guilty in
appeal No. [2] based on the promise that the sentence in appeal No.
[2] would run concurrently with the sentence in appeal No. [1]”
(People v Khammonivang, 68 AD3d 1727, 1727-1728, lv denied 14 NY3d
                                 -2-                          382
                                                        KA 10-00680

889; cf. People v Fuggazzatto, 62 NY2d 862, 863).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
