| People v Peters |
| 2010 NY Slip Op 00289 [69 AD3d 765] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ZeranPeters, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered February 28, 2007, convicting him of robbery in the second 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 support hisconviction of robbery in the second degree is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]; People vLaviscount, 57 AD3d 1007, 1008 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt(see Penal Law § 160.00 [2]; § 160.10 [2]; People v Mattis, 46 AD3d 929,931-932 [2007]). Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that reversal is required because the verdicts on the two counts ofrobbery in the second degree were repugnant is without merit. Viewing the verdicts solely interms of the elements as charged to the jury (see People v Tucker, 55 NY2d 1, 7 [1981]),the acquittal returned on one of the counts of robbery in the second degree (see PenalLaw § 160.10 [1]) did not negate any essential element of the charge of robbery in thesecond degree of which the defendant was convicted (see Penal Law § 160.10 [2][a]). Moreover, the court submitted the two robbery counts in the alternative without objectionby the defendant, thus making it clear before deliberations commenced that the jury would not bepermitted to convict the defendant of both counts of robbery in the second degree regardless ofits factual determinations. Under such circumstances, there is "no principled basis" to give thedefendant the benefit of any perceived inconsistency in the verdicts (cf. People v Rayam,94 NY2d 557, 562 [2000]; [*2]United States v Powell,469 US 57, 65 [1984]).
The defendant was not denied his right to be present at a material stage of the trial when thecourt made an inquiry of a sworn juror (see CPL 270.35 [1]; People v Harris, 99NY2d 202, 212 [2002]; People vOakes, 57 AD3d 1425, 1426 [2008]; People v Rodriguez, 2 AD3d 296, 298 [2003]). Nor did thesentencing court improvidently exercise its discretion in denying the defendant's request foryouthful offender treatment (see Peoplev Huffman, 47 AD3d 646 [2008]; People v Polansky, 125 AD2d 342, 343[1986]).
The defendant's remaining contentions are without merit. Fisher, J.P., Miller, Eng and Hall,JJ., concur.