PEOPLE, res, v. CHARLES FLOW, def-ap

3838. PEOPLE, res, v. CHARLES FLOW, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for res — Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered October 24, 2013, convicting defendant, after a jury trial, of robbery in the first and third degrees, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, consecutive to a sentence imposed in New York County on April 27, 2010, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentence be served concurrently with the New York County sentence, and also modified, on the law, to the extent of dismissing the third-degree robbery count as a lesser included offense, and otherwise affirmed.

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3838. PEOPLE, res, v. CHARLES FLOW, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for res — Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered October 24, 2013, convicting defendant, after a jury trial, of robbery in the first and third degrees, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, consecutive to a sentence imposed in New York County on April 27, 2010, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentence be served concurrently with the New York County sentence, and also modified, on the law, to the extent of dismissing the third-degree robbery count as a lesser included offense, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). On the contrary, the evidence of defendant’s guilt was overwhelming. Two bank tellers and a customer made reliable identifications, defendant left his fingerprint on a envelope in a teller’s drawer, and the bank surveillance videotape depicted a man resembling defendant. Defendant was properly convicted of firstdegree robbery under the theory of displaying what appeared to be a weapon (see People v. Smith, NY3d , 2017 NY Slip Op 02362 [Mar 28, 2017]), which does not require any proof of possession of an actual firearm. The affirmative defense set forth in Penal Law §160.15(4) was neither raised nor supported by any evidence.

PEOPLE, res, v. CHARLES FLOW, def-ap

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