| People v Brown |
| 2014 NY Slip Op 05553 [119 AD3d 953] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Shawn Brown, Appellant. |
Gary E. Eisenberg, New City, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered March 23, 2010, convicting him of robbery in the second degree(two counts), upon a jury verdict, and sentencing him to two concurrent determinateterms of imprisonment of eight years, followed by a period of postrelease supervision offive years.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the determinate terms of imprisonment imposed from eight years tosix years; as so modified, the judgment is affirmed.
Following a jury trial, the defendant was convicted of two counts of robbery in thesecond degree for two separate robberies that occurred on the same night in Yonkers.The defendant contends that the evidence was legally insufficient to prove that hedisplayed what appeared to be a firearm (see Penal Law § 160.10[2] [b]) in the second robbery because the complainant stated that she was 80% sure thatthe gun was a fake, which it turned out to be. The defendant's contention is unpreservedfor appellate review, as his general motion for a trial order of dismissal did not create aquestion of law for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People v Finger, 95 NY2d 894, 894 [2000]; People vGray, 86 NY2d 10, 19 [1995]; People v Bynum, 70 NY2d 858, 859 [1987];People v Stahl, 53 NY2d 1048, 1050 [1981]). In any event, his contention iswithout merit. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt withrespect to the second robbery was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The subject complainant testified that she believed that there was a20% chance that the gun was real, and that she was afraid for her life at time she handedher money to the defendant. "The complainant was not required to call the defendant'sbluff, but could resolve any doubts in favor of the risk presented, and the jury couldreasonably find that the complainant had believed that the gun displayed might have beenreal" (People v Kaur, 204 AD2d 573, 573-574 [1994]; see People v Colon, 116 AD3d1234 [2014]).
[*2] The defendant'scontention that the evidence was legally insufficient to establish his identity as theperpetrator of the subject crimes is also unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins, 11 NY3d at 492; People vFinger, 95 NY2d at 894; People v Gray, 86 NY2d at 19; People vBynum, 70 NY2d at 859; People v Stahl, 53 NY2d at 1050). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Furthermore, the verdict of guilt was notagainst the weight of the evidence.
The sentence imposed was excessive to the extent indicated herein. Leventhal, J.P.,Chambers, Austin and Hinds-Radix, JJ., concur.