| People v Austin |
| 2010 NY Slip Op 04017 [73 AD3d 1471] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TimothyAustin, Also Known as Khali Ali, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered September 5, 2008. The judgment convicted defendant, upon a nonjury verdict, ofrobbery 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 following a nonjury trialof robbery in the third degree (Penal Law § 160.05). Defendant failed to preserve for ourreview his challenge to the legal sufficiency of the evidence (see People v Gray, 86NY2d 10, 19 [1995]). We reject the contention of defendant that defense counsel was ineffectivein failing to preserve that challenge for our review inasmuch as defendant failed to demonstratethat it would be meritorious (see Peoplev Bassett, 55 AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]).Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's further contention, "the showup identification procedure, which wasconducted in geographic and temporal proximity to the crime, was not unduly suggestive" (People v Davis, 48 AD3d 1120,1122 [2008], lv denied 10 NY3d 957 [2008]; see People v Duuvon, 77 NY2d541, 545 [1991]), despite the fact that defendant was seated in a police vehicle when viewed bythe victim (see People v Robinson,8 AD3d 1028, 1029-1030 [2004], affd 5 NY3d 738 [2005], cert denied 546US 988 [2005]; Duuvon, 77 NY2d at 545; People v Ricks, 270 AD2d 882[2000], lv denied 95 NY2d 802 [2000]). The sentence is not unduly harsh orsevere. Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.