| People v Whipset |
| 2016 NY Slip Op 02260 [137 AD3d 1743] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHorace D. Whipset, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered May 13, 2014. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of robbery in the second degree (Penal Law § 160.10 [1]), arising froman incident in which defendant and another individual robbed money from the victimafter repeatedly punching him. Viewing the evidence in light of the elements of the crimeas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contentionthat the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although there were inconsistencies betweenthe victim's testimony and his prior statements regarding the amount of money taken, histestimony "was not so inconsistent as to be incredible as a matter of law" (People v Smith, 73 AD3d1469, 1470 [2010], lv denied 15 NY3d 778 [2010]). "Testimony will bedeemed incredible as a matter of law only where it is 'manifestly untrue, physicallyimpossible, contrary to experience, or self-contradictory' " (id. at 1470;see People v Stroman, 83 AD2d 370, 372-373 [1981]), and that is not the casehere. "Further, it is well settled that credibility issues are best resolved by the jury"(Smith, 73 AD3d at 1470; see People v Harris, 15 AD3d 966, 967 [2005], lvdenied 4 NY3d 831 [2005]), and we perceive no basis to disturb its determination.Finally, considering the nature of the crime, we conclude that the sentence is not undulyharsh or severe. Present—Whalen, P.J., Centra, Carni, DeJoseph and Troutman,JJ.