Opinion
2014-01-29
The PEOPLE, etc., respondent, v. Francisco SIERRA, appellant.
Steven Banks, New York, N.Y. (Martin M. Lucente and Alan S. Axelrod of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
Steven Banks, New York, N.Y. (Martin M. Lucente and Alan S. Axelrod of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
RANDALL T. ENG, P.J., MARK C. DILLON, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Gavrin, J.), rendered March 20, 2009, convicting him under Indictment No. 615/08 of robbery in the second degree and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court also rendered March 20, 2009, revoking a sentence of probation previously imposed under Superior Court Information No. 2216/05 by the same court (Chin–Brandt, J.), upon a finding that he had violated a condition thereof, upon his admission, and sentencing him to a determinate term of imprisonment of three years upon his previous conviction of attempted assault in the second degree to be served consecutively to the sentence imposed under Indictment No. 615/08.
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the amended judgment is modified, on the law, by vacating the sentence imposed; as so modified, the amended judgment is affirmed and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
Contrary to the People's contention, the defendant's claim that the evidence was legally insufficient to support his conviction of robbery in the second degree under Penal Law § 160.10(1) is preserved for appellate review ( seeCPL 470.05[2] ). However, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of robbery in the second degree and criminal possession of stolen property in the fifth degree beyond a reasonable doubt ( see People v. John, 51 A.D.3d 819, 820, 859 N.Y.S.2d 456; People v. Lyons, 197 A.D.2d 708, 709, 602 N.Y.S.2d 924). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The sentence imposed for the defendant's conviction of robbery in the second degree was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). However, as the defendant argues, and the People correctly concede, the sentence imposed on the defendant's conviction of attempted assault in the second degree, after his previous sentence of probation was revoked, was improper. The sentencing court incorrectly imposed a determinate sentence, and an indeterminate sentence is required ( seePenal Law 70.00[2][e], [3] [b] ). Accordingly, we remit the matter to the Supreme Court, Queens County, for resentencing on the defendant's conviction of attempted assault in the second degree.