| People v Brown |
| 2018 NY Slip Op 07904 [166 AD3d 1582] |
| November 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Spartacus Brown, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Elizabeth Riker of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., ofcounsel), for respondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered September 14, 2015. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [3]), defendant contendsthat the verdict is against the weight of the evidence. Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject that contention (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's contention is primarily based on alleged variances among thewitnesses' testimony and between the testimony and the physical evidence. Anyinconsistencies in the witnesses' testimony, however, "merely presented issues ofcredibility for the jury to resolve" (People v Ielfield, 132 AD3d 1298, 1300 [4th Dept 2015],lv denied 27 NY3d 1152 [2016]), and we conclude that, "notwithstanding minorinconsistencies in the testimony of the People's witnesses, 'there is no basis for disturbingthe jury's determinations concerning credibility' " (People v Sommerville, 159AD3d 1515, 1516 [4th Dept 2018], lv denied 31 NY3d 1121 [2018]; see People v McCallie, 37AD3d 1129, 1130 [4th Dept 2007], lv denied 8 NY3d 987 [2007]).
By failing to object on the grounds raised on appeal, defendant failed to preserve forour review his contention that County Court's consciousness-of-guilt instruction to thejury impermissibly shifted the burden of proof (see CPL 470.05 [2]; People vRobinson, 88 NY2d 1001, 1001-1002 [1996]; People v Koberstein, 262AD2d 1032, 1033 [4th Dept 1999], lv denied 94 NY2d 798 [1999]). We declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
The sentence is not unduly harsh or severe. Present—Whalen, P.J., Smith,Centra, NeMoyer and Curran, JJ.