| People v Hennings |
| 2008 NY Slip Op 07451 [55 AD3d 1393] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael V.Hennings, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered October 11,2006. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree,robbery in the second degree (two counts) and unlawful imprisonment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of onecount each of burglary in the second degree (Penal Law § 140.25 [1] [c]) and unlawfulimprisonment in the first degree (§ 135.10) and two counts of robbery in the second degree(§ 160.10 [1], [2] [b]). We reject defendant's contention that the verdict is against the weight ofthe evidence. Although a different verdict would not have been unreasonable, we conclude that the jurydid not fail to give the evidence the weight it should be accorded in rejecting the misidentification theoryof the defense (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). That theory was"overwhelmingly refuted by the strong identification testimony of the victim[ ]" (People v Leising,161 AD2d 1172, 1173 [1990], lv denied 76 NY2d 860 [1990]). Defendant failed topreserve for our review his further contention that the evidence is legally insufficient to support theunlawful imprisonment conviction (see People v Gray, 86 NY2d 10, 19 [1995]).
We reject defendant's contention that County Court erred in permitting the victim to make anin-court identification of defendant. Although the court concluded following the suppression hearing thatthe showup identification procedure was unduly suggestive, it nevertheless properly determined that thePeople established that the victim had an independent basis for his in-court identification (seePeople v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; Peoplev Riley, 70 NY2d 523, 531 [1987]). We have reviewed defendant's remaining contentions andconclude that they are without merit. Present—Scudder, P.J., Martoche, Fahey, Peradotto andGorski, JJ.