People v. Moody

Judgment unanimously modified on the facts and as modified affirmed and matter remitted to Erie County Court for sentencing in accordance with the following Memorandum: Defendant contends that the judgment should be modified by reducing the conviction from robbery in the first degree (Penal Law § 160.15 [4]) to robbery in the second degree (Penal Law § 160.10 [2] [b]) based on proof of the affirmative defense to robbery in the first degree. We agree. Upon our review of the evidence, we find that the jury “failed to give the evidence the weight that it should be accorded” (People v Bleakley, 69 NY2d 490, 495). Although by *863his gestures, defendant “consciously manifest [ed] the presence of an object to the victim in such a way that the victim reasonably perceive[d] that the defendant ha[d] a gun” (People v Lopez, 73 NY2d 214, 222; see, People v Clarke, 265 AD2d 170, lv denied 94 NY2d 821; People v Guerriero, 221 AD2d 560, lv denied 87 NY2d 902), defendant was not armed when apprehended within minutes of the crime and only a short distance away (see, People v Deboue, 234 AD2d 558; People v Watts, 151 AD2d 307, lv denied 74 NY2d 821). We therefore modify the judgment by reducing the conviction of robbery in the first degree to robbery in the second degree (Penal Law § 160.10 [2] [b]) and vacating the sentence, and we remit the matter to Erie County Court for sentencing in accordance with Penal Law § 70.06. (Appeal from Judgment of Erie County Court, Drury, J. — Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Green, Hayes, Wisner and Lawton, JJ.