| People v Lowe |
| 2008 NY Slip Op 01372 [48 AD3d 593] |
| February 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JerryLowe, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Merri TurkLasky, and Ayelet Sela of counsel; Matthew C. Williams on the brief), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Lasak,J.), rendered February 22, 2006, convicting him of robbery in the first degree (two counts) androbbery in the third degree (two counts), upon a jury verdict, and imposing sentence, and (2) anamended judgment of the same court rendered April 10, 2006, which, upon vacating the originalsentence imposed on February 22, 2006, imposed a new sentence upon the defendant on theconvictions of robbery in the first degree (two counts) and robbery in the third degree (twocounts), as a second felony offender.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment; and it is further,
Ordered that the amended judgment is modified, on the law, by vacating the convictions ofrobbery in the third degree, vacating the sentences imposed thereon, and dismissing those countsof the indictment; as so modified, the amended judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v [*2]Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant's contentions regarding the court's alleged errors in its jury charge as to hisalibi defense are unpreserved for appellate review (see CPL 470.05 [2]). In any event, thecharge, when viewed in its entirety, adequately conveyed to the jury that the prosecution bore theburden of disproving the defendant's alibi defense (see People v Warren, 76 NY2d 773[1990]).
Finally, the defendant correctly contends that robbery in the third degree is a lesser includedoffense of robbery in the first degree (see Penal Law §§ 160.05, 160.15).Therefore, the convictions of robbery in the third degree and the sentences imposed thereon mustbe vacated, and those counts of the indictment must be dismissed (see CPL 300.40 [3][b]; People v Sease, 245 AD2d 396 [1997]). Mastro, J.P., Santucci, Balkin andDickerson, JJ., concur.