Opinion
465 KA 10-02118
05-01-2015
The PEOPLE of the State of New York, Respondent, v. Alvin E. SIMMONS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[3] ), defendant contends that the evidence is legally insufficient to support the conviction because the People failed to establish that he “actually possessed a dangerous instrument at the time of the crime” (People v. Pena, 50 N.Y.2d 400, 407, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814 ). We reject that contention. Viewing the evidence in the light most favorable to the prosecution (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 victim's testimony that defendant removed a knife from his pocket immediately before asking for money is legally sufficient to establish that defendant possessed a dangerous instrument (see generally People v. Mitchell, 59 A.D.3d 739, 739–740, 874 N.Y.S.2d 226, lv. denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 ; People v. Thompson, 273 A.D.2d 153, 153, 710 N.Y.S.2d 333, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 ). Contrary to defendant's contention, any inconsistency between the victim's trial testimony and the victim's testimony from prior proceedings was not so great as to render his trial testimony incredible as a matter of law (see People v. Baker, 30 A.D.3d 1102, 1102, 817 N.Y.S.2d 793, lv. denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 ).
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to whether he used or threatened to use a dangerous instrument inasmuch as he did not move for a trial order of dismissal on that ground (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Holloway, 97 A.D.3d 1099, 1099, 947 N.Y.S.2d 874, lv. denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 ). In any event, that contention lacks merit inasmuch as “[t]he jury could have reasonably concluded that defendant ... made an implied threat to use the [knife] against the [victim]” (People v. Espada, 94 A.D.3d 451, 452, 941 N.Y.S.2d 151, lv. denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 ; see Mitchell, 59 A.D.3d at 739–740, 874 N.Y.S.2d 226 ; People v. Boisseau, 33 A.D.3d 568, 568, 824 N.Y.S.2d 17, lv. denied 8 N.Y.3d 844, 830 N.Y.S.2d 702, 862 N.E.2d 794 ).
Finally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see People v. Johnson, 105 A.D.3d 1452, 1452–1453, 963 N.Y.S.2d 911, lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although defendant testified that he did not possess a knife and that the victim voluntarily gave him the money, “[g]reat deference is to be accorded the [factfinder's] resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” (People v. Curry, 82 A.D.3d 1650, 1651, 921 N.Y.S.2d 420, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803 [internal quotation marks omitted] ), and we see no basis to disturb the jury's credibility determinations.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.