People v Flores
2006 NY Slip Op 03024 [28 AD3d 380]
April 25, 2006
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent,
Enrido Flores, Also Known as Enrique Flores, Appellant.


Judgment, Supreme Court, New York County (Joan C. Sudolnik, J.), rendered August 2, 2004, convicting defendant, after a jury trial, of robbery in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 3½ years, unanimously affirmed.

The court properly denied defendant's request to charge petit larceny as a lesser included offense since there was no reasonable view of the evidence upon which a jury could find him guilty of petit larceny but not guilty of robbery in the second degree (see People v Scarborough, 49 NY2d 364, 373 [1980]). The evidence established that immediately after defendant and his accomplices pushed and shoved the victim, the accomplices surrounded the victim and prevented his departure at the same time that defendant "asked" the victim for money, which the victim surrendered to defendant. Defendant either committed a forcible stealing (Penal Law § 160.00) of the victim's money, or he did not "wrongfully take[ ], obtain[ ] or withhold[ ]" (Penal Law § 155.05 [1]) the victim's money; under no reasonable view of the evidence did defendant commit a wrongful taking but not a forcible taking. To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would find it to be without merit. Concur—Nardelli, J.P., Williams, Catterson, McGuire and Malone, JJ.