Opinion
July 9, 1984
Appeal by defendant from a judgment of the Supreme Court, Westchester County (Walsh, J.), rendered October 23, 1980, convicting him of robbery in the third degree and grand larceny in the second degree, upon a jury verdict, and imposing sentence.
¶ Judgment affirmed.
¶ Viewing the evidence in the light most favorable to the People, as we must on appellate review, it is clear that any rational trier of facts would be justified in concluding, beyond a reasonable doubt, that defendant was guilty of the crimes of which he has been convicted ( People v. Contes, 60 N.Y.2d 620, 621). The identification testimony was strong and any alleged inconsistencies were properly left to the jury for its resolution ( People v Gruttola, 43 N.Y.2d 116, 122; People v. Walker, 96 A.D.2d 1108).
¶ Nor was there any error in refusing to permit the defendant to conduct a courtroom experiment ostensibly to show that a tattoo would not be visible if he had been wearing a tank top shirt, as witnesses testified. Defendant was unable to provide an adequate foundation because the shirts which he sought to utilize were not shown to be substantially the same style as that allegedly worn at the time the crimes were committed (see People v. Cohen, 71 A.D.2d 687, 689 [Titone, J., dissenting], revd 50 N.Y.2d 908). Consequently, the trial court properly exercised its discretion in sustaining the People's objection to a possibly misleading demonstrative procedure (see People v. Acevedo, 40 N.Y.2d 701, 704).
¶ We have considered petitioner's other contentions and find them to be without merit. Titone, J.P., Gibbons, Brown and Niehoff, JJ., concur.