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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ramon LOPEZ, Defendant-Appellant.

Decided: November 30, 2006

BUCKLEY, P.J., TOM, MAZZARELLI, WILLIAMS, McGUIRE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee and Alexis Agathocleous of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Michael G. Honeymar, Jr. of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October 29, 2004, convicting defendant, after a nonjury trial, of robbery in the second degree (two counts) and possession of burglar's tools (three counts), and sentencing him, as a second violent felony offender, to an aggregate term of 7 years, unanimously affirmed.

The verdict was based on legally sufficient evidence.   The evidence supports the conclusion that defendant used force to retain property after stealing it, and thus committed robbery.   With stolen merchandise concealed on his person, defendant sprayed pepper spray at store security guards who approached him, and exhorted his accomplice, who was also in possession of stolen property, to flee the scene.   Defendant's continued retention of the merchandise during the struggle further supports an inference that this use of force was for the purpose of overcoming resistance to his retention of the property (see e.g. People v. McMahon, 279 A.D.2d 272, 719 N.Y.S.2d 23 [2001], lv. denied 96 N.Y.2d 803, 726 N.Y.S.2d 381, 750 N.E.2d 83 [2001];  People v. Thomas, 226 A.D.2d 120, 640 N.Y.S.2d 503 [1996], lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432 [1996] ).   Although defendant addresses only the sufficiency and not the weight of the evidence, his principal argument is that the trier of fact should have credited his testimony that he used the spray only to protect his accomplice from being injured by the security guards.   However, there is no basis for disturbing the court's credibility determinations.

M-5593 People v. Ramon Lopez

Motion seeking leave to appeal denied.