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

557
KA 12-01763
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARREN SULLIVAN, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered March 29, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the third degree and
petit larceny.

     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 robbery in the third degree (Penal Law §
160.05) and petit larceny (§ 155.25). Defendant contends that the
evidence established that he used force to escape from store security
personnel rather than for the purpose of retaining stolen property,
and thus the evidence is legally insufficient to support his robbery
conviction. We reject that contention. The People presented evidence
establishing that defendant took items into a fitting room and left
the store without paying for any merchandise, holding a bag that
appeared larger than it appeared when he had entered the store. When
confronted by store security personnel, defendant threatened the use
of force and escaped from the mall. Viewing the evidence in the light
most favorable to the People, we conclude that “permissible inferences
could lead a rational person to the conclusion reached by the jury
that defendant used force or at least the threat of force in order to
retain control of the [property,] thus satisfying the proof and burden
requirements for robbery in the third degree” (People v Bynum, 68 AD3d
1348, 1349, lv denied 14 NY3d 798; see People v Gordon, ___ NY3d ___,
___ [June 12, 2014]).

     We further reject defendant’s contention that the verdict is
against the weight of the evidence. “Given that defendant was in
possession of the stolen property while he was engaged in such use of
force, the jury was entitled to infer that his purpose in using force
                                 -2-                           557
                                                         KA 12-01763

was to retain control of the stolen property, not merely to escape”
(People v Stone, 45 AD3d 1270, 1271, lv denied 9 NY3d 1039 [internal
quotation marks omitted]). Thus, viewing the evidence in light of 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 (see generally People v Bleakley, 69 NY2d 490,
495).

     Contrary to defendant’s contention, “ ‘[t]he evidence presented
at trial . . . consisted of both circumstantial and direct evidence,
and thus a circumstantial evidence charge was not required’ ” (People
v Smith, 90 AD3d 1565, 1566, lv denied 18 NY3d 998; see People v
Daddona, 81 NY2d 990, 992; People v Stanford, 87 AD3d 1367, 1369, lv
denied 18 NY3d 886).

     Contrary to defendant’s further contention, the prosecutor did
not suggest on summation that defendant had the burden of proof but,
even assuming, arguendo, that the prosecutor did so, we conclude that
the comment at issue “w[as] not so . . . egregious as to deny
defendant a fair trial” (People v Rogers, 103 AD3d 1150, 1153-1154, lv
denied 21 NY3d 946). Indeed, we note in particular that “the court
clearly and unequivocally instructed the jury that the burden of proof
on all issues remained with the prosecution” (People v Pepe, 259 AD2d
949, 950, lv denied 93 NY2d 1024; see People v Page, 105 AD3d 1380,
1382). Defendant failed to preserve for our review the remainder of
his contention concerning alleged prosecutorial misconduct inasmuch as
he failed to object to the alleged additional instances of misconduct
(see CPL 470.05 [2]; People v Lane, 106 AD3d 1478, 1480, lv denied 21
NY3d 1043) and, in any event, we conclude that “[a]ny improprieties
were not so pervasive or egregious as to deprive defendant of a fair
trial” (People v Jackson, 108 AD3d 1079, 1080, lv denied 22 NY3d 997
[internal quotation marks omitted]).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
