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People v. Mays

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 1991
577 N.Y.S.2d 647 (N.Y. App. Div. 1991)

Opinion

December 16, 1991

Appeal from the County Court, Westchester County (West, J.).


Ordered that the judgment is affirmed.

The complainant offered uncontradicted testimony that she was confronted by the defendant holding what appeared to be a pistol with a small paper bag over its muzzle. There having been no rational basis upon which the jury could have rejected the testimony concerning the gun while accepting the balance of the complainant's testimony about the robbery, the defendant's request for a charge on the lesser included offense of robbery in the third degree was properly denied (see, People v Blim, 63 N.Y.2d 718, 720-721; People v Glover, 144 A.D.2d 483; People v White, 121 A.D.2d 762, 763; People v Neal, 118 A.D.2d 815).

We reject the defendant's contention that the County Court erroneously denied a request to recharge the jury on the element of "forcible stealing". There was no express request for such an instruction in the jury's note, which simply asked that the court recite the five elements of robbery in the first degree (Penal Law § 160.15), nor was there any indication that the jury was confused on this point (see, People v Malloy, 55 N.Y.2d 296, 302, cert denied 459 U.S. 847; People v Brown, 166 A.D.2d 762; People v Dean, 162 A.D.2d 699, 700).

The defendant asserts as error numerous instances where the court's charge varied from the specific language contained in his written requests to charge. The bulk of these alleged errors constitute mere objections to the fact that the trial court did not employ the specific language proposed by the defendant (see, People v Dory, 59 N.Y.2d 121; People v Hathaway, 159 A.D.2d 748, 751; People v Maldonado, 127 A.D.2d 855). The court's identification charge, while not as extensive as that requested, accurately stated the law and did not prejudice the defendant (see, People v Whalen, 59 N.Y.2d 273; People v Trama, 160 A.D.2d 748; People v Walker, 125 A.D.2d 732), especially in view of the overwhelming evidence of identity, which included the fact that the defendant was well known to the complainant (see, People v Floyd, 150 A.D.2d 486; People v Beasley, 114 A.D.2d 415).

The defendant's remaining contentions are either unpreserved for appellate review or without merit. Lawrence, J.P., Balletta, Rosenblatt and O'Brien, JJ., concur.


Summaries of

People v. Mays

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 1991
577 N.Y.S.2d 647 (N.Y. App. Div. 1991)
Case details for

People v. Mays

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CALVIN MAYS, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 16, 1991

Citations

577 N.Y.S.2d 647 (N.Y. App. Div. 1991)
577 N.Y.S.2d 647

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