| People v Bryant |
| 2012 NY Slip Op 00466 [91 AD3d 558] |
| Jnury 26, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rickey Bryant, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J., at hearing; Analisa Torres, J.,at jury trial and sentencing), rendered August 11, 2009, convicting defendant of robbery in thefirst degree, criminal possession of stolen property in the fifth degree, and two counts of criminalpossession of a controlled substance in the seventh degree, and sentencing him to an aggregateterm of five years, unanimously affirmed.
The court properly denied defendant's suppression motion. Upon defendant's lawful arrest atthe door of his apartment, the police properly conducted a limited protective sweep of theapartment to determine if there was anyone present who might destroy evidence or pose a threatto the officers (see Maryland v Buie, 494 US 325, 334 [1990]). The robbery victim hadprovided information warranting a reasonable belief that other participants in the robbery mightbe present in the apartment. The record supports the hearing court's finding that the recovery ofincriminating evidence from a partly open closet was justified under the plain view doctrine, andwas within the scope of the protective sweep (see People v Lasso-Reina, 305 AD2d 121,122 [2003], lv denied 100 NY2d 595 [2003]).
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility, including its resolution ofinconsistencies in the testimony of the prosecution witnesses.
The court properly denied defendant's request for a missing witness charge, since [*2]defendant failed to meet his burden of showing that the uncalledwitness would have provided material, noncumulative testimony (see People v Brunner, 67 AD3d464, 465 [2009], affd 16 NY3d 820 [2011]). Concur—Mazzarelli, J.P., Saxe,Catterson, Acosta and RomÁn, JJ.