Opinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Horace D. WHIPSET, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10[1] ), arising from an incident in which defendant and another individual robbed money from the victim after repeatedly punching him. 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 ), we reject defendant's contention that the verdict is against 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 ). Although there were inconsistencies between the victim's testimony and his prior statements regarding the amount of money taken, his testimony "was not so inconsistent as to be incredible as a matter of law" (People v. Smith, 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802, lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 ). "Testimony will be deemed incredible as a matter of law only where it is ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ " (id. at 1470, 900 N.Y.S.2d 802 ; see People v. Stroman, 83 A.D.2d 370, 372–373, 444 N.Y.S.2d 463 ), and that is not the case here. "Further, it is well settled that credibility issues are best resolved by the jury" (Smith, 73 A.D.3d at 1470, 900 N.Y.S.2d 802 ; see People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 ), and we perceive no basis to disturb its determination. Finally, considering the nature of the crime, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.WHALEN, P.J., CENTRA, CARNI, DeJOSEPH, and TROUTMAN, JJ., concur.