| People v McGiboney |
| 2009 NY Slip Op 03921 [62 AD3d 812] |
| May 12, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Luther McGiboney, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel; Christina Okereke on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGuidice, J.), rendered March 23, 2005, convicting him of robbery in the second degree andcriminal possession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress physical evidence and identificationtestimony.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. The complainant's scar satisfied the "physical injury" element ofrobbery in the second degree (see Penal Law § 10.00 [9]; Penal Law §160.10; People v Tejeda, 78 NY2d 936, 937-938 [1991]; People v Williams, 23 AD3d 589,590 [2005]; People v Rivera, 183 AD2d 792, 793 [1992]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the contention raised by the defendant in his supplemental pro se brief, the [*2]Supreme Court properly denied that branch of his omnibus motionwhich was to suppress the physical evidence found on his person. The police had reasonablesuspicion to believe that the defendant could have been armed with a knife, and thecomplainant's property was found during a pat down for such a weapon (see Terry v Ohio,392 US 1, 29 [1968]; accord Sibron v New York, 392 US 40, 65 [1968]). Moreover,the defendant had no expectation of privacy regarding the screwdriver admitted into evidence,which was found on a nearby bridge, and not on the defendant's person (see People vWhitfield, 81 NY2d 904, 905-906 [1993]; People v Thomas, 246 AD2d 611 [1998]).In addition, the showup identification procedure used by the police in this case was not undulysuggestive (see People v Duuvon, 77 NY2d 541, 543 [1991]; People v Loo, 14 AD3d 716[2005]; People v Fox, 11 AD3d709 [2004]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]).
The defendant's contentions raised in points I, III, and VI of his supplemental pro se brief areunpreserved for appellate review and, in any event, are without merit. The defendant's remainingcontention, raised in point II of his supplemental pro se brief, is without merit. Rivera, J.P.,Covello, Dickerson and Chambers, JJ., concur.