         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
77
KA 06-02430
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT A. LYNCH, DEFENDANT-APPELLANT.


KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J.
CZAPRANSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered September 8, 2005. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree,
robbery in the second degree (two counts) and robbery in the third
degree.

     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 one count each of robbery in the first degree
(Penal Law § 160.15 [3]) and robbery in the third degree (§ 160.05)
and two counts of robbery in the second degree (§ 160.10 [1], [2]
[a]). Contrary to defendant’s contention, “[t]he showup
[identification procedure] was not rendered unduly suggestive by
factors ‘[i]nherent in any showup’ . . ., including the victim’s
apparent awareness that [she] was viewing a possible suspect and the
presence of police officers guarding defendant” (People v Grant, 77
AD3d 558, 558). In addition, “[t]he circumstances that defendant was
handcuffed behind his back . . . and that the [victim] was told that
[she] would be viewing a suspect, did not render the procedure unduly
suggestive” (People v Edwards, 259 AD2d 343, 344, lv denied 93 NY2d
969; see People v Lewis, 306 AD2d 931, lv denied 100 NY2d 596).

     Defendant failed to preserve for our review his further
contention that the jury actually convicted him of robbery in the
third degree as a lesser included offense of robbery in the first
degree as charged in the second count of the indictment, rather than
robbery in the first degree (see People v Nairne, 258 AD2d 671, lv
denied 93 NY2d 1003, 1004; People v Rundblad, 154 AD2d 746, 747-748;
see generally People v Mercado, 91 NY2d 960, 963; People v Marilla, 7
NY2d 319, 320). In any event, “[b]ased on the minutes and the jury
                                 -2-                            77
                                                         KA 06-02430

verdict sheet” (People v Williams, 262 AD2d 218, 219, lv denied 93
NY2d 1046), as well as County Court’s charge to the jury, it is clear
that the court clerk merely misspoke when she asked whether the jury
found defendant guilty of robbery in the third degree and that the
jury actually found defendant guilty of robbery in the first degree as
charged in the second count. Furthermore, with respect to the second
count, the court instructed the jury, inter alia, to consider robbery
in the third degree as a lesser included offense of robbery in the
first degree only if it found defendant not guilty of the charged
offense, and the jury rendered only a single guilty verdict on the
second count. When taking the verdict in court, the court clerk also
indicated that the crime was “Robbery in the Third Degree, Dangerous
Instrument,” and the use or threat of use of a dangerous instrument is
an element of robbery in the first degree as charged in the second
count (see Penal Law § 160.15 [3]). Robbery in the third degree has
no such requirement (see § 160.05).

     Insofar as defendant contends that the verdict is repugnant
because, inter alia, he was acquitted of robbery in the first degree
as charged in the first count of the indictment but convicted of that
crime as charged in the second count, we conclude that he failed to
preserve that contention for our review by failing to object to the
verdict before the jury was discharged (see People v Alfaro, 66 NY2d
985, 987). We decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). Contrary to defendant’s further contention, the evidence is
legally sufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crimes 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 Bleakley, 69 NY2d at 495).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contention and conclude that it is without
merit.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
