| People v Hill |
| 2010 NY Slip Op 05084 [74 AD3d 1782] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Spencer Hill,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Douglas A. Goerss of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedFebruary 27, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of robbery in the second degree(Penal Law § 160.10 [1]), defendant contends that the verdict is against the weight of theevidence. We reject that contention. Viewing the evidence in light of the elements of the crimeof robbery in the second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat an acquittal would not have been unreasonable based on the questionable credibility of thevictim's testimony (see id. at 348; People v Alexis, 65 AD3d 1160 [2009]; People v Griffin, 63 AD3d 635,638 [2009]). However, "giving 'appropriate deference to the jury's superior opportunity to assessthe witnesses' credibility' " (People vMarshall, 65 AD3d 710, 712 [2009], lv denied 13 NY3d 940 [2010]), weconclude that the jury was entitled to credit the victim's version of events over defendant'sversion.
As we determined on the appeal of the codefendant (People v Wedlington, 67 AD3d 1472, 1474 [2009], lv denied14 NY3d 807 [2010]), we similarly conclude herein that defendant failed to preserve for ourreview his contention that County Court erred in failing to give an adverse inference instructionto the jury pursuant to Penal Law § 450.10 (10). We further conclude in any event thatdefendant's contentions with respect thereto lack merit, for the same reasons as those set forth inour decision in Wedlington. Finally, the court did not abuse its discretion in imposing afive-year period of postrelease supervision rather than the minimum period of 2½ years(see Penal Law § 70.45 [2] [f]), and we decline to exercise our power to modifythe judgment as a matter of discretion in the interest of justice by imposing a lesser period ofpostrelease supervision (see CPL 470.15 [6] [b]). Present—Scudder, P.J.,Peradotto, Lindley, Green and Gorski, JJ.