Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Michael LEGGETT, Defendant–Appellant.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10[1] ). Defendant made only a general motion for a trial order of dismissal at the close of the People's case ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and at the close of all the proof ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396), and thus he failed to preserve for our review his contention that the conviction is based upon legally insufficient evidence. In any event, that contention is without merit. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to establish that defendant, acting with his codefendant who was actually present, forcibly stole money from the victim ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that, although a different result would not have been unreasonable, the jury did not fail to give the conflicting evidence the weight it should be accorded ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Here, the issue whether defendant participated in the robbery was based upon the credibility determination of the jury and, upon our independent assessment of the evidence, we conclude that there is no reason to disturb that determination ( see generally People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383).
Defendant did not object to comments made by the prosecutorduring summation and thus also failed to preserve for our review his contention that he was deprived of a fair trial by those comments ( seeCPL 470.05 [2]; People v. Brown, 94 A.D.3d 1461, 1462, 942 N.Y.S.2d 826,lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917). In any event, we conclude that the remarks were within the broad bounds of permissible rhetorical comment ( see Brown, 94 A.D.3d at 1462, 942 N.Y.S.2d 826).
We reject defendant's contention that County Court abused its discretion with respect to its Sandoval determination ( see People v. Thomas, 96 A.D.3d 1670, 949 N.Y.S.2d 545,lv. denied19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924). The court imposed the minimum term of incarceration allowed ( seePenal Law § 70.06[6][b] ), and thus defendant's contention that the term of incarceration imposed is unduly harsh and severe is without merit. Finally, to the extent that defendant contends that the period of postrelease supervision imposed is unduly harsh and severe, we decline to exercise our power to modify that portion of the sentence as a matter of discretion in the interest of justice ( seeCPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.