Opinion
May 9, 1996
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490). Defendant's use or threatened immediate use of a dangerous instrument (Penal Law § 160.15) was established by evidence that he "swished" a knife during a struggle with the complainant and his brother, after defendant picked the complainant's pocket and as the complainant recovered the stolen money from defendant's grasp ( see, People v. Fields, 179 A.D.2d 458, lv withdrawn 79 N.Y.2d 947). Credibility issues were properly presented to the jury and we see no reason to disturb its verdict.
The sentence imposed was not excessive in light of defendant's criminal history, which was correctly characterized by the sentencing court as an "increasing pattern of violence" in defendant's theft-related crimes.
Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Williams, JJ.