| People v Tineo |
| 2012 NY Slip Op 02751 [94 AD3d 507] |
| April 12, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alberto Tineo, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered December 10,2009, convicting defendant, after a jury trial, of robbery in the first and second degrees,attempted robbery in the first and second degrees, and burglary in the first degree, and sentencinghim to an aggregate term of 17 years, unanimously modified, on the law, and as a matter ofdiscretion in the interest of justice, to reduce the sentences on the robbery in the first degree,robbery in the second degree, attempted robbery in the second degree and burglary in the seconddegree convictions to concurrent sentences of 13 years, and to reduce the conviction forattempted robbery in the first degree to attempted robbery in the third degree and to reduce thesentence on that conviction to a concurrent term of 1
Subdivision (4) of Penal Law § 160.15 defines robbery in the first degree so as torequire that in the course of forcibly stealing property the perpetrator "[d]isplays what appears tobe a pistol, revolver . . . or other firearm." Such "display must actually be witnessedin some manner by the victim" of the crime (People v Baskerville, 60 NY2d 374, 381[1983]). The evidence supporting the attempted robbery in the first degree count is legallyinsufficient because it was not established that the victim under that count witnessed the displayof a weapon. In fact, the victim testified that she did not see any weapons. We are not persuadedby the People's argument that the victim's testimony left open the possibility that she saw a gun atsome point during the home invasion. Speculation is insufficient to meet the People's burden toprove each element of the crime charged (see People v Brown, 25 NY2d 374, 377[1969]).
Defendant's challenges to the sufficiency of the evidence are unpreserved and we decline togrant any further review in the interest of justice. In the alternative, we find that the verdict wasbased on legally sufficient evidence. We also find that the verdict was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Further, there is no basis for disturbing thejury's credibility determinations, particularly with respect to the conflict [*2]between the People's evidence and the defendant's testimony as tohow his palm prints came to be found on duct tape that was used to bind the hands of one of therobbery victims (see People vMendez, 89 AD3d 496 [2011]). We find the sentence excessive to the extent indicated.Concur—Saxe, J.P., Friedman, Renwick, DeGrasse and Freedman, JJ.