| People v Flores |
| 2011 NY Slip Op 07443 [88 AD3d 902] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v OmarFlores, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, Brooke E. Barnes, and Danielle Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered May 22, 2009, convicting him of robbery in the first degree, robbery in the seconddegree, criminal possession of a weapon in the fourth degree, and criminal possession of stolenproperty in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (O'Dwyer, J.H.O.), of those branches of the defendant'somnibus motion which were to suppress identification testimony and physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the police officers acted properly in stopping anddetaining him. At about 2:30 a.m., uniformed Police Officers Brennan and Metten responded to aradio report of a robbery committed by three male Hispanics. The officers spoke with thecomplainant, who indicated the direction in which the perpetrators had fled. Officer Brennanimmediately went in that direction and observed the defendant and the codefendant, both ofwhom were Hispanic males and were the only individuals on the street, walking in the indicateddirection less than two blocks from the crime scene. Officer Brennan identified himself andasked them to stop, but the defendant and the codefendant changed directions and walked awayat a quicker pace with their heads lowered and hands raised. By the time Officer Brennan stoppedand detained them, Officer Metten arrived with the complainant, who identified the men as theperpetrators. Under the totality of the circumstances, the officers' actions were at all times proper(see People v De Bour, 40 NY2d 210, 223 [1976]; People v Ramos, 74 AD3d 991, 992 [2010]; People v Mobley, 58 AD3d 756[2009]; People v Armsworth, 27AD3d 571 [2006]). Accordingly, the Supreme Court properly denied those branches of thedefendant's omnibus motion which were to suppress identification testimony and physicalevidence.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction isunpreserved for appellate review, as his general motion to dismiss at the close of the People'scase failed to specify any grounds for dismissal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Rivera, 74AD3d 993 [2010]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was [*2]legally sufficient to establish the defendant's guilt beyond areasonable doubt (see People vSoares, 80 AD3d 631 [2011]; People v Ramos, 74 AD3d at 992; People v Mitchell, 59 AD3d 739,740 [2009]; People v Urena, 46AD3d 714 [2007]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People 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 are satisfied that the verdict of guilt as to eachof the crimes of which the defendant was convicted was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations does not establish that he was punishedfor asserting his right to proceed to trial (see People v Pena, 50 NY2d 400, 411 [1980],cert denied 449 US 1087 [1981]; People v Munlyn, 67 AD3d 1028 [2009]; People v Garcia, 66 AD3d 699,700 [2009]; People v Chapero, 23AD3d 492, 493 [2005]). Moreover, the sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]). Angiolillo, J.P., Balkin, Hall and Cohen, JJ., concur.