Opinion
2015-10-2
The PEOPLE of the State of New York, Respondent, v. Jonoc ABON, also known as Jonol Abon, Defendant–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of two counts of robbery in the second degree (Penal Law § 160.10[1]; [2] [b] ), defendant contends that the conviction is not supported by legally sufficient evidence and the verdict is contrary to the weight of the evidence because, inter alia, the prosecution's witnesses were not credible and the evidence does not establish that he participated in the crime. Defendant failed to preserve his sufficiency challenge for our review “inasmuch as his motion for a trial order of dismissal was not specifically directed at the same alleged shortcoming[s] in the evidence raised on appeal” (People v. Brown, 96 A.D.3d 1561, 1562, 946 N.Y.S.2d 761, lv. denied19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted]; see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).
Viewing the evidence in light of the elements of the two counts of robbery as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is contrary to the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). With respect to the credibility of the witnesses, we note that their testimony “was not so inconsistent or unbelievable as to render it incredible as a matter of law” (People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we see no basis for disturbing the jury's credibility determinations in this case.
We reject defendant's further contention that County Court erred in denying his request for an expanded identification charge. “It cannot be said that this case involved a ‘close question of identity’ ” (People v. Perez, 77 N.Y.2d 928, 929, 569 N.Y.S.2d 600, 572 N.E.2d 41), and defendant did not present an alibi defense ( see People v. Singleton, 286 A.D.2d 877, 877, 730 N.Y.S.2d 650, lv. denied97 N.Y.2d 658, 737 N.Y.S.2d 59, 762 N.E.2d 937). Indeed, we note that four eyewitnesses identified defendant as the perpetrator, and they had several opportunities to observe defendant at close range under good lighting conditions. In addition, one of the witnesses had met defendant before, and defendant and codefendant initially conversed at length with another witness during the drug sale that immediately preceded this incident. “In any event, the court properly charged the jury that the People were required to prove every element of the crime beyond a reasonable doubt, including that the defendant is the person who committed the crime” (People v. Willis, 79 A.D.3d 1739, 1741, 917 N.Y.S.2d 788, lv. denied16 N.Y.3d 864, 923 N.Y.S.2d 426, 947 N.E.2d 1205 [internal quotation marks omitted]; see generally People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.