Opinion
1193 KA 15–02111
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Spartacus BROWN, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of robbery in the first degree ( Penal Law § 160.15[3] ), defendant contends that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crime 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 [2007] ), we reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant's contention is primarily based on alleged variances among the witnesses' testimony and between the testimony and the physical evidence. Any inconsistencies in the witnesses' testimony, however, "merely presented issues of credibility for the jury to resolve" ( People v. Ielfield, 132 A.D.3d 1298, 1300, 18 N.Y.S.3d 229 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ), and we conclude that, "notwithstanding minor inconsistencies in the testimony of the People's witnesses, ‘there is no basis for disturbing the jury's determinations concerning credibility’ " ( People v. Sommerville, 159 A.D.3d 1515, 1516, 72 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ; see People v. McCallie, 37 A.D.3d 1129, 1130, 829 N.Y.S.2d 355 [4th Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ).By failing to object on the grounds raised on appeal, defendant failed to preserve for our review his contention that County Court's consciousness-of-guilt instruction to the jury impermissibly shifted the burden of proof (see CPL 470.05[2] ; People v. Robinson, 88 N.Y.2d 1001, 1001–1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266 [1996] ; People v. Koberstein, 262 A.D.2d 1032, 1033, 693 N.Y.S.2d 366 [4th Dept. 1999], lv denied 94 N.Y.2d 798, 700 N.Y.S.2d 432, 722 N.E.2d 512 [1999] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
The sentence is not unduly harsh or severe.