| People v Pimental |
| 2008 NY Slip Op 01601 [48 AD3d 321] |
| February 21, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DelviAntonio Pimental, Also Known as Delvi Pimentel, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., on severance motion;Marcy L. Kahn, J., at jury trial and sentence), rendered on or about June 13, 2000, convictingdefendant of robbery in the first degree and criminal possession of a weapon in the third degree,and sentencing him, as a second violent felony offender, to concurrent terms of 15 years and3½ to 7 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. There is no basis for disturbing the jury's determinations concerning identification andcredibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). Any inconsistencies in thevictim's testimony were not so significant as to cast doubt on the reliability of her identificationof defendant.
The court properly denied defendant's pretrial motion to sever the robbery and weaponcharges, since they were properly joined in accordance with CPL 200.20 (2) (b). Evidence that atthe time of his arrest, approximately two weeks after the robbery, defendant possessed a knifethat was similar to the one described as having been used in the robbery was relevant to establishhis identity as the robber, as well as to show that at the time of his arrest he possessed the knifewith intent to use it unlawfully (seePeople v Bailey, 14 AD3d 362, 363 [2005], lv denied 4 NY3d 856 [2005]; People v Marte, 7 AD3d 405, 407[2004]). To the extent that defendant presently argues that the victim's trial testimony did notconform to the representations made by the People in opposing the severance motion, thatargument is unpreserved because defendant did not renew the motion during trial (cf.People v Abrew, 95 NY2d 806, 808 [2000] [absent renewed motion, trial evidence not abasis for challenging suppression ruling]), and we decline to review it in the interest of justice.As an alternative holding, we also reject it on the merits. The trial testimony fully supported thePeople's joinder theory.
The court properly denied defendant's mistrial motion, which asserted that the prosecutor'ssummation arguments vouched for witnesses and mischaracterized defendant's defense. Althoughthe court sustained objections to arguments by the prosecutor that the robbery victim was honest,each argument was wholly proper as each was grounded in the evidence and urged the jury todraw a reasonable conclusion from the evidence and the prosecutor neither purported to beasserting nor suggested he was asserting a personal opinion let alone one [*2]unconnected to the evidence. Defendant's remaining summationclaims are unpreserved and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Nardelli,Williams and McGuire, JJ.