| People v Leggett |
| 2012 NY Slip Op 08980 [101 AD3d 1694] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael Leggett,Appellant. |
—[*1]
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered December2, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robberyin the second degree (Penal Law § 160.10 [1]). Defendant made only a general motion for a trialorder of dismissal at the close of the People's case (see People v Gray, 86 NY2d 10, 19[1995]), and at the close of all the proof (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]), and thus he failed to preserve for our review hiscontention that the conviction is based upon legally insufficient evidence. In any event, that contention iswithout merit. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to establishthat defendant, acting with his codefendant who was actually present, forcibly stole money from thevictim (see generally People v Danielson,9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of the crime as charged to the jury (see Danielson, 9 NY3d at349), we further conclude that, although a different result would not have been unreasonable, the jurydid not fail to give the conflicting evidence the weight it should be accorded (see generallyBleakley, 69 NY2d at 495). Here, the issue whether defendant participated in the robbery wasbased upon the credibility determination of the jury and, upon our independent assessment of theevidence, we conclude that there is no reason to disturb that determination (see generally People v Delamota, 18 NY3d107, 116-117 [2011]).
Defendant did not object to comments made by the prosecutor during summation and thus alsofailed to preserve for our review his contention that he was deprived of a fair trial by those comments(see CPL 470.05 [2]; People vBrown, 94 AD3d 1461, 1462 [2012], lv denied 19 NY3d 995 [2012]). In anyevent, we conclude that the remarks were within the broad bounds of permissible rhetorical comment(see Brown, 94 AD3d at 1462).
We reject defendant's contention that County Court abused its discretion with respect to itsSandoval determination (see Peoplev Thomas, 96 AD3d 1670 [2012], lv denied 19 NY3d 1002 [2012]). [*2]The court imposed the minimum term of incarceration allowed (seePenal Law § 70.06 [6] [b]), and thus defendant's contention that the term of incarcerationimposed is unduly harsh and severe is without merit. Finally, to the extent that defendant contends thatthe period of postrelease supervision imposed is unduly harsh and severe, we decline to exercise ourpower to modify that portion of the sentence as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [b]). Present—Scudder, P.J., Smith, Fahey, Carni and Martoche, JJ.