The People of the State of New York, Respondent, v. James Smith, Appellant

The People of the State of New York, Respondent, v James Smith, Appellant. [632 NYS2d 211] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered March 2, 1992, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The trial court properly denied the defendant’s request for a charge regarding the affirmative defense to robbery in the first degree, to wit, that the defendant did not consciously display a loaded weapon from which a shot could be discharged (see, Penal Law § 160.05 [4]; People v Lopez, 73 NY2d 214; People v Baskerville, 60 NY2d 374). "While the victims did not see what the defendant and his accomplices brandished from beneath their jackets, and no weapons were recovered, both victims testified that each of the perpetrators pointed concealed weapons at them, that the defendant repeatedly ordered his accomplices to "pop” the victims, that one of the perpetrators poked a gun into one of the victim’s ribs, and that after the robbery the defendant turned to the victims, and while reaching inside his coat, yelled "you didn’t get enough. You want to die”. "A defendant is entitled to a charge on the affirmative defense to robbery in the first degree when there is presented sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied” (People v Gilliard, 72 NY2d 877, 878; see, People v Moye, 66 NY2d 887, 889). Such evidence was not present in the instant case. The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245) and we decline to reach it in the interest of justice. Balletta, J. P., Rosenblatt, Ritter and Pizzuto, JJ., concur.