Opinion
No. 914 KA 06-02324.
June 13, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered August 9, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree and intimidating a victim or witness in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of robbery in the first degree (Penal Law § 160.15), robbery in the second degree (§ 160.10 [1]) and intimidating a victim or witness in the third degree (§ 215.15 [1]), defendant contends that the evidence is legally insufficient to support the conviction. We reject that contention ( see generally People v Bleakley, 69 NY2d 490, 495). We also reject defendant's contention that the verdict is against the weight of the evidence (see generally id.). Where, as here, witness credibility is of paramount importance, we accord "[g]reat deference . . . to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( id.). Defendant failed to preserve for our review his further contention that he was denied a fair trial based on prosecutorial misconduct ( see People v Bones, 50 AD3d 1527), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).
We conclude that Supreme Court properly allowed the People to cross-examine defendant's alibi witnesses concerning their pretrial silence inasmuch as the People established an appropriate foundation for that questioning ( see People v Dawson, 50 NY2d 311, 321; People v Cain, 9 AD3d 827, 828, lv denied 3 NY3d 671). The court also properly allowed the People to treat a prosecution witness as a hostile witness ( see People v Smith, 286 AD2d 878, lv denied 98 NY2d 641; People v Davis, 163 AD2d 826, lv denied 76 NY2d 939). Inasmuch as defendant failed to request a missing witness charge until after the close of proof, his request was properly denied as untimely ( see People v France, 265 AD2d 424, lv denied 94 NY2d 823). Finally, we conclude that the court did not abuse its discretion in denying defendant's request for youthful offender status ( see People v Pappas, 198 AD2d 918, lv denied 82 NY2d 928; see generally People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058), and that the sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of intimidating a victim or witness in the third degree under Penal Law § 215.15 (4), and it must therefore be amended to reflect that he was convicted under Penal Law § 215.15 (1) ( see People v Saxton, 32 AD3d 1286).