| People v Johnson |
| 2010 NY Slip Op 02351 [71 AD3d 1521] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KelvinJohnson, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedNovember 18, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in thethird degree, grand larceny in the fourth degree (two counts) and criminal possession of stolenproperty in the fourth 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 ofrobbery in the third degree (Penal Law § 160.05), criminal possession of stolen property inthe fourth degree (§ 165.45 [2]) and two counts of grand larceny in the fourth degree(§ 155.30 [4], [5]). We reject the contention of defendant that County Court erred inrefusing to suppress, inter alia, physical evidence and his statements to the police. Contrary tothe contention of defendant, we conclude that the police had probable cause to arrest him. "It iswell settled that 'information provided by an identified citizen accusing another individual of thecommission of a specific crime is sufficient to provide the police with probable cause to arrest' "(People v McClain, 67 AD3d1480, 1480 [2009]). In addition, the subsequent "search of defendant's person, resulting inthe seizure of the [victim's purse], was incident to that lawful arrest" (People v Williams, 39 AD3d1269, 1270 [2007], lv denied 9 NY3d 871 [2007]; see generally People vWeintraub, 35 NY2d 351, 353-354 [1974]). Contrary to the further contention of defendant,"we conclude that [his postarrest] statements [to the police] were spontaneous and were not theproduct of express interrogation or its functional equivalent" (People v Wearen, 19 AD3d 1133, 1134 [2005], lv denied 5NY3d 834 [2005]).
Defendant failed to preserve for our review his contention that the evidence is not legallysufficient to support the conviction of grand larceny in the fourth degree under the third count ofthe indictment inasmuch as he failed to renew his motion for a trial order of dismissal afterpresenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied97 NY2d 678 [2001]; People v Gray, 86 NY2d 10, 19 [1995]). Defendant furthercontends that the court erred in denying that part of his motion for a trial order of dismissal withrespect to the third count of the indictment because grand larceny in the fourth degree is aninclusory concurrent count of robbery in the third degree. We reject that contention (cf. People v Moore, 41 AD3d1149, 1152 [2007], lv denied 9 NY3d 879, 992 [2007]; see generally CPL300.40 [3] [a]). "The element of grand larceny in the fourth degree of stealing property from theperson of another is not an element of . . . robbery in the third degree, which issimple forcible [*2]stealing" (People v Sidney, 178AD2d 445, 445-446 [1991], lv denied 79 NY2d 923 [1992]; see generally People vGlover, 57 NY2d 61, 63-64 [1982]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "'[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury, which [observed] and heard thewitnesses' " (see People vSorrentino, 12 AD3d 1197, 1197-1198 [2004], lv denied 4 NY3d 748 [2004]).Finally, defendant's contention "that the court erred in failing to direct the court reporter totranscribe the voir dire . . . is not properly before us because defendant explicitlywaived the transcription of voir dire" (People v Collins, 288 AD2d 860, 861 [2001],lv denied 97 NY2d 752 [2002]). Present—Smith, J.P., Centra, Lindley, Sconiersand Pine, JJ.