Opinion
1999-10580
Submitted May 27, 2003.
June 16, 2003.
Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered November 4, 1999, convicting him of robbery in the first degree, petit larceny, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
John P. Savoca, White Plains, N.Y., for appellant, and appellant pro se.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Catherine A. Walsh of counsel), for respondent.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contentions as to the legal sufficiency of the evidence of his guilt of the crimes of robbery in the first degree and criminal possession of a weapon in the fourth degree (see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish his guilt of those crimes beyond a reasonable doubt. Minor discrepancies between the testimony of witnesses is not sufficient to show that a witness's testimony was incredible as a matter of law (see People v. DiGirolamo, 108 A.D.2d 755). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
Since the convictions were based on legally sufficient trial evidence, the denial of the defendant's motion to dismiss the indictment based on the alleged insufficiency of the Grand Jury evidence is not reviewable on appeal (see People v. Oliver, 283 A.D.2d 659, 660; People v. Wadsworth, 253 A.D.2d 899).
The defendant's contention that certain remarks made by the prosecutor during summation were improper is unpreserved for appellate review because the remarks were not objected to at trial (see People v. Hilliard, 279 A.D.2d 590; People v. Hermonstyne, 273 A.D.2d 408). In any event, the remarks constituted fair comment on the evidence and were responsive to the arguments and issues raised by the defense (see People v. Scoon, 303 A.D.2d 525 [2d Dept, Mar. 10, 2003]; People v. Ashwal, 39 N.Y.2d 105; People v. Small, 286 A.D.2d 513, 514).
The defendant received the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
RITTER, J.P., FRIEDMANN, H. MILLER and TOWNES, JJ., concur.