Opinion
2014-07-9
The PEOPLE, etc., respondent, v. Adesola OGUNTUNJI, appellant.
Steven Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Ezra E. Zonana of counsel), for respondent.
Steven Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Ezra E. Zonana of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered August 7, 2012, convicting him of robbery in the third degree, grand larceny in the fourth degree (five counts), and criminal possession of stolen property in the fifth degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction for robbery in the third degree is unpreserved for appellate review, as the defendant never moved for a trial order of dismissal of that count, and his motion pursuant to CPL 330.30 to set aside the jury verdict on that count was not sufficient to preserve his challenge for appellatereview ( see People v. Pitre, 108 A.D.3d 643, 968 N.Y.S.2d 585;People v. Joseph, 74 A.D.3d 840, 901 N.Y.S.2d 530). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of that count, including that he used physical force upon the complainant in order to overcome her resistance to the taking of her property ( see Penal Law 160.00; People v. Dixon, 232 A.D.2d 653, 653–654, 648 N.Y.S.2d 1009;People v. Ross, 180 A.D.2d 698, 579 N.Y.S.2d 713). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). RIVERA, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.