| People v Boyd |
| 2009 NY Slip Op 00856 [59 AD3d 1001] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Patrick Boyd,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), renderedJanuary 9, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, robbery in the first degree (four counts), criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict offour counts of robbery in the first degree (Penal Law § 160.15 [1], [2], [3], [4]) and onecount each of murder in the second degree (§ 125.25 [3]), criminal possession of a weaponin the second degree (§ 265.03 [former (2)]), and criminal possession of a weapon in thethird degree (§ 265.02 [former (4)]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "The question of whether the defendant was acting under duress is primarily one ofcredibility, which is to be determined by the jury . . . [, and t]he jury'sdetermination should be accorded great weight on appeal and should not be disturbed unlessclearly unsupported by the record" (People v Torres, 158 AD2d 730, 731 [1990], lvdenied 76 NY2d 744 [1990]). Contrary to defendant's contention, County Court did notabuse its discretion in submitting to the jury the noninclusory concurrent counts of robbery in thefirst degree under Penal Law § 160.15 (2) and (4) (see People v Davis, 165 AD2d610, 612 [1991], lv denied 78 NY2d 1010 [1991]; see also People v Kulakov,278 AD2d 519, 520-521 [2000], lv denied 96 NY2d 785 [2001], reconsiderationdenied 9 NY3d 866 [2007]).
Defendant failed to preserve for our review his contention that the court erred in instructingthe jurors on the statutory presumption set forth in Penal Law § 265.15 (4) with respect todefendant's intent to commit the crime of criminal possession of a weapon in the second degree(see People v Pulley, 302 AD2d 899 [2003], lv denied 100 NY2d 565 [2003]).We decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). By failing to renew his motion for a trialorder of dismissal after presenting evidence, defendant also failed to preserve for our review[*2]his contention that the evidence is legally insufficient tosupport the conviction of criminal possession of a weapon in the third degree (see People v Lane, 7 NY3d 888,889 [2006]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P.,Martoche, Smith, Centra and Peradotto, JJ.