Opinion
470
March 12, 2002.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 30, 2000, convicting defendant, after a jury trial, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Walter J. Storey for respondent.
Jane Levitt for defendant-appellant.
Before: Williams, P.J., Nardelli, Andrias, Sullivan, Friedman, JJ.
Defendant's suppression motion was properly denied. Probable cause was established by the fact that the arresting officer had seen a videotape of the crime several times and subsequently encountered defendant, whom he recognized as the person shown on the tape. Contrary to defendant's argument, in the circumstances presented herein, the People were not required to produce the videotape at the suppression hearing in order to meet their burden of coming forward to show the legality of the police conduct (see, People v. Berrios, 28 N.Y.2d 361, 367-68). The officer's testimony that he recognized defendant was not a conclusion but a statement of fact.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The victim's credible testimony that defendant demanded money during this incident clearly established an attempted robbery.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.