SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1178 

KA 10-01213 

PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

LARRY J. WILLIAMS, DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), rendered July 8, 2008. The judgment

convicted defendant, upon a jury verdict, of robbery in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant was convicted following a jury trial of

robbery in the second degree (Penal Law § 160.10 [2] [b]) for robbing

a bank while holding his hand in his sweatshirt pocket and informing a

teller that he had a gun. Defendant failed to preserve for our review

his contention that the evidence is legally insufficient to establish

that the victim perceived the “display” of a weapon (see People v

Gray, 86 NY2d 10, 19). In any event, there is no merit to that

contention. To establish the “display” element of the robbery

statute, “[t]he People must show that the defendant consciously

displayed something that could reasonably be perceived as a firearm,

with the intent of forcibly taking property, and that the victim

actually perceived the display” (People v Lopez, 73 NY2d 214, 220; see

People v Baskerville, 60 NY2d 374, 381). “[T]he display requirement

has been broadly construed to cover a wide range of actions which

might reasonably create the impression in the mind of the victim that

the robber is armed with a firearm” (Lopez, 73 NY2d at 220-221; see

Baskerville, 60 NY2d at 381-382). Thus, it has been held that a hand

consciously concealed in clothing may satisfy the display requirement

“if under all the circumstances the defendant’s conduct could

reasonably lead the victim to believe that a gun is being used during

the robbery” (Lopez, 73 NY2d at 220; see People v Middleton, 247 AD2d

713, 713, lv denied 92 NY2d 856). Upon our review of the record, we

conclude that the evidence is legally sufficient to establish that the

victim perceived that defendant displayed what appeared to be a
-2- 1178 

KA 10-01213 

firearm during the course of the robbery (see Lopez, 73 NY2d at

221-222; Middleton, 247 AD2d at 713-714). Furthermore, although a

finding that defendant did not display a firearm would not have been

unreasonable (see generally People v Bleakley, 69 NY2d 490, 495), we

conclude that, upon viewing the evidence in light of the elements of

the crime of robbery in the second degree, it cannot be said that the

jury failed to give the evidence the weight it should be accorded (see

generally People v Danielson, 9 NY3d 342, 349; Bleakley, 69 NY2d at

495).

We further conclude that the sentence is not unduly harsh or

severe. Contrary to defendant’s contention, “the fact that [Supreme

Court] imposed a more severe sentence after trial than that offered

during plea negotiations does not demonstrate that defendant was

punished for exercising his right to a trial” (People v McCallum, 96

AD3d 1638, 1640).

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court