Opinion
2460
December 5, 2002.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered January 4, 1999, convicting defendant, after a jury trial, of robbery in the second degree (two counts) and fraudulent accosting, and sentencing him, as a persistent felony offender, to concurrent terms of 16 years to life on each robbery conviction and 1 year on the fraudulent accosting conviction, unanimously affirmed.
Alan Gadlin, for respondent.
David K. Bertan, for defendant-appellant.
WILLIAMS, P.J., ELLERIN, RUBIN, MARLOW, GONZALEZ, JJ.
The verdict was based on legally sufficient evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The evidence established that, immediately after defendant and his accomplice completed a larceny by tricking the victim into giving them her diamond bracelet, they used force for the purpose of retaining the bracelet (see Penal Law § 160.00). Defendant did not use force solely to facilitate his escape; on the contrary, he used force to retain control of the bracelet and to fight off the victim's efforts to reclaim it as he fled (see People v. Straker, 291 A.D.2d 246, lv denied 98 N.Y.2d 713; People v. McMahon, 279 A.D.2d 272, lv denied 96 N.Y.2d 803;Matter of Deidra J., 243 A.D.2d 276).
Defendant's claim that the People failed to prove that the victim sustained physical injury, as required by Penal Law § 160.10(2)(a), is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was ample evidence that the victim suffered the requisite impairment of physical condition or substantial pain (see People v. Guidice, 83 N.Y.2d 630, 636).
Defendant's procedural challenges to his adjudication as a persistent felony offender are unpreserved (People v. Proctor, 79 N.Y.2d 992; People v. Oliver, 63 N.Y.2d 973), and we decline to review them in the interest of justice. Were we to review these claims, we would find that defendant's adjudication complied with the statutory requirements (see People v. Bouyea, 64 N.Y.2d 1140). The People introduced competent evidence of defendant's prior felony convictions (see CPL 60.60). Defendant's claim that the court was unfairly predisposed toward adjudicating him a persistent felony offender is unsupported by the record.
The court properly exercised its discretion in adjudicating defendant a persistent felony offender and we perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.