Opinion
October 28, 1993
Appeal from the Supreme Court, New York County (Angela Mazzarelli, J.).
Viewing the evidence in a light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), we find that the evidence was sufficient as a matter of law to support the verdict finding defendant guilty beyond a reasonable doubt of attempted robbery in the first degree. Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). The issue raised by defendant concerning his intent to take anything from the victim was properly placed before the jury, and we find no reason on the record before us to disturb its determination. Nor do we find merit to defendant's argument that his sentence was excessive. However, as the record indicates that the court may have incorrectly sentenced defendant as a second violent, rather than nonviolent felony offender, we vacate the sentence and remand for resentencing.
Concur — Carro, J.P., Rosenberger, Ellerin and Kassal, JJ.