Opinion
2738.
Decided January 27, 2004.
Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered June 28, 2001, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 5 years, unanimously affirmed.
Patrick J. Hynes, for Respondent.
Susan Epstein, for Defendant-Appellant.
Before: Tom, J.P., Andrias, Lerner, Friedman, Marlow, JJ.
The verdict was based on legally sufficient evidence, and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility ( see People v. Gaimari, 176 N.Y. 84, 94). The victim's credible testimony established that this incident was a robbery, and not merely an altercation as contended by defendant.
The People established a proper foundation under CPL 60.25(1)(a) for the admission of testimony from police officers recounting the victim's out-of-court identification of defendant ( see People v. Bayron, 66 N.Y.2d 77, 81). The victim's inability to make an in-court identification was clearly the result of the lapse of time between the incident and the trial, and defendant's drastic change in his appearance ( see People v. Mendoza, 293 A.D.2d 326, lv denied 98 N.Y.2d 678).
The court's response to a note from the deliberating jury was meaningful and appropriately conveyed the applicable legal principles ( see People v. Almodovar, 62 N.Y.2d 126, 131; People v. Malloy, 55 N.Y.2d 296, 301-302, cert denied 459 U.S. 847). The jury's note requested specific information and did not call for a complete re-instruction on the subject of accessorial liability.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.