The People of the State of New York, Respondent, v. Jose Colon, Appellant

The People of the State of New York, Respondent, v Jose Colon, Appellant. [631 NYS2d 855] [MAJORITY] —Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered May 29,1992, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed. The People proved the element of "threatens the immediate use of physical force” (Penal Law § 160.00) by legally sufficient evidence, establishing that while defendant removed the victim’s coat and money, his associate simulated the possession of a handgun and blocked the only exit of escape the victim could have taken (Penal Law § 160.10; see, People v Zagorski, 135 AD2d 594, 595). Defendant’s claim that he was denied due process by the court’s response to a jury note regarding how long they should continue deliberating that evening is unpreserved for appellate review as a matter of law, and we decline to review it in the interest of justice. If we were to review it, we would find that the challenged instruction was not coercive and provided a meaningful response to the inquiry (compare, People v Carter, 40 NY2d 933). Considering defendant’s criminal history, the sentence imposed, which was less than the maximum, was not excessive. Concur—Murphy, P. J., Ellerin, Kupferman, Asch and Mazzarelli, JJ.