People v Akomah
2008 NY Slip Op 05086 [52 AD3d 521]
June 3, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 13, 2008


The People of the State of New York, Respondent,
v
Osei Akomah, Appellant.

[*1] Steven Banks, New York, N.Y. (Lawrence T. Hausman and White & Case, LLP [Jenna Z. Nicenko, Peter B. Patterson, and R. Gregory Parker], of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Hayward H. Smith of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered February 10, 2006, convicting him of robbery in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. Justice Belen has been substituted for Justice Chambers (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed.

The defendant contends that the trial court erred in denying his request to submit the lesser-included offense of robbery in the third degree to the jury. However, the defendant's conduct, as perceived by the complainant, was the display of a gun within the meaning of Penal Law § 160.10 (2). Thus, a reasonable view of the evidence would not support the conclusion that the crime occurred without the display of a gun (see People v Cooper, 294 AD2d 592 [2002]; People v Ruiz, 220 AD2d 466 [1995]; People v Maynard, 211 AD2d 505 [1995]; People v Mays, 178 AD2d 557 [1991]). Accordingly, the defendant's request for a charge on the lesser-included offense of robbery in the third degree was properly denied.

Moreover, the trial court properly refused to charge the non-inclusory concurrent count of grand larceny in the fourth degree (see CPL 300.40 [3] [a]; People v Leon, 7 NY3d 109, 113-114 [2006]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Miller, J.P., Dillon, McCarthy and Belen, JJ., concur.