| People v Roberts |
| 2009 NY Slip Op 06042 [64 AD3d 796] |
| July 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RicoRoberts, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, andRussell J. Pinilis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered October 11, 2007, convicting him of murder in the second degree and attemptedrobbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to sustain hisconviction is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484,491-492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish, beyond a reasonable doubt, that the defendant acted in concert with, andintentionally aided, his companion, to commit the charged act of attempted robbery in the firstdegree (see People v Mathis, 60 AD3d 697 [2009]; People v Witherspoon, 300AD2d 605 [2002]; People v Mejia, 297 AD2d 755 [2002]; People v Ramos, 284AD2d 136 [2001]; People v Davis, 260 AD2d 726, 729 [1999]), and to establish thedefendant's guilt of felony murder based on the commission of that predicate crime (seePeople v Miller, 60 AD3d 785 [2009]; People v Booker, 49 AD3d 658, 659 [2008];People v Bailey, 298 AD2d 524 [2002]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5];People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
Further, the defendant failed to meet his burden of establishing the affirmative defense tofelony murder (see Penal Law § 125.25 [3]). The evidence adduced at trialdemonstrated that the defendant held the victim while he and his cohort demanded money, andafter his cohort shot the victim, both the defendant and his cohort rifled through the victim'spockets (see People v Williams, 56 AD3d 699 [2008]; People v Roker, 52 AD3d538 [2008]; People v Gonzales, 48 AD3d 698 [2008]; People v Jackson, 208AD2d 862 [1994]; People v Simmons, 143 AD2d 857 [1988]; People v Brailsford,106 AD2d 648 [1984]). Mastro, J.P., Eng, Belen and Hall, JJ., concur.