Peoplev.Fuentes-Cruz

Appellate Division of the Supreme Court of New York, Second DepartmentNov 24, 2003
1 A.D.3d 608 (N.Y. App. Div. 2003)
1 A.D.3d 608767 N.Y.S.2d 463

2002-04026.

Argued November 3, 2003.

November 24, 2003.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered April 9, 2002, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Betty A. Rugg, Baldwin, N.Y., for appellant.

Denis Dillon, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Andrea M. DiGregorio of counsel), for respondent.

Before: LEO F. McGINITY, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to support his conviction of robbery in the second degree because the People failed to establish his identity as the robber or his intent to commit robbery. The defendant's contention that the evidence was legally insufficient to establish his intent to commit robbery is unpreserved for appellate review ( see CPL 470.05; People v. Bynum, 70 N.Y.2d 858) . In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's identity and intent to commit robbery beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses ( see People v. Gaimari, 176 N.Y. 84, 94). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).

The defendant's contention that he was denied a fair trial by the admission of bolstering testimony of a police officer who described, on redirect examination, the complainant's demeanor when he identified the defendant on the street, and by the prosecutor's reference to this testimony on summation in violation of People v. Trowbridge ( 305 N.Y. 471) is unpreserved for appellate review ( see CPL 470.05; People v. West, 56 N.Y.2d 662; People v. Alston, 163 A.D.2d 398). In any event, this argument is without merit. The defense counsel opened the door to the issue of the complainant's prior out-of-court identification of the defendant by bringing up the matter on cross-examination of the police officer who was present, thereby allowing the prosecutor to ask questions on the subject on redirect examination ( see People v. Melendez, 55 N.Y.2d 445, 451-452; People v. Ocean, 292 A.D.2d 545; People v. Taylor, 142 A.D.2d 410, 421, affd 75 N.Y.2d 277).

The defendant's remaining contentions regarding bolstering and prosecutorial misconduct are, for the most part, also unpreserved for appellate review ( see CPL 470.05), and, in any event, without merit or do not warrant reversal.

Contrary to the defendant's contention, the County Court providently exercised its discretion in summarily denying, without a hearing, his motion pursuant to CPL 330.30 to set aside the verdict based on newly-discovered evidence, as the defendant failed to establish that the evidence could not have been discovered with due diligence, or that, if received, would have created a probability of a more favorable verdict ( see People v. Reddick, 293 A.D.2d 554; People v. Wells, 289 A.D.2d 599).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contention is without merit.

McGINITY, J.P., LUCIANO, SCHMIDT and RIVERA, JJ., concur.