The People of the State of New York, Respondent, v. Michael Barbeau, Appellant

The People of the State of New York, Respondent, v Michael Barbeau, Appellant. [604 NYS2d 425] [MAJORITY] —Judgment unanimously affirmed. Memorandum: The proof established that defendant, while displaying what appeared to be a handgun, took a portable radio from a shopping mall security guard and then discarded the radio when pursued by a police officer. That constituted legally sufficient evidence that defendant intended to deprive the guard of the radio and to appropriate it to himself (see, People v Sturkey, 161 AD2d 101, revd on other grounds 77 NY2d 979). Further, there is no merit to defendant’s contention that the security guard lacked a superior possessory interest in the beer bottle that defendant took from the guard. That beer bottle had been seized from defendant’s companion in the course of an investigation and arrest of the companion for violation of the open container ordinance of the City of Batavia. A private person may arrest another person for any offense committed in his presence (see, CPL 140.30 [1]) and thus, the guard had a superior right to possession of that bottle as contraband. The court imposed an authorized sentence upon defendant, a second felony offender, and that sentence is not harsh or excessive. (Appeal from Judgment of Genesee County Court, Morton, J. —Robbery, 2nd Degree.) Present — Callahan, J. P., Pine, Balio, Doerr and Boomer, JJ.