People v. Smith

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 4, 2008, convicting defendant, after a nonjury trial, of robbery in the first degree, and sentenc

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations. The “[displays what appears to be a . . . firearm” element of robbery in the first degree (Penal Law § 160.15 [4]) was satisfied by evidence that defendant pressed a hard object, which the victim believed to be a handgun, against the victim’s waist while demanding money (see People v Lopez, 73 NY2d 214 , 220 [1989]; People v Groves, 282 AD2d 278 [2001], lv denied 96 NY2d 901 [2001]).

Defendant’s challenges to the prosecutor’s summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1992]; People v D’Alessandro, 184 AD2d 114 , 118-119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor should not have made a propensity argument regarding defendant’s prior convictions, which had been admitted for impeachment only. However, we find that this argument did not deprive defendant of a fair trial, particularly since this was a nonjury trial where the trier of fact is presumed capable of disregarding such remarks (see People v Tong Khuu, 293 AD2d 424 , 425 [2002], lv denied 98 NY2d 714 [2002]). Concur—Andrias, J.P., Nardelli, Moskowitz, DeGrasse and Román, JJ.