People v Nieves

People v Nieves 2007 NY Slip Op 01360 [37 AD3d 277] February 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
Heriberto Nieves, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered May 20, 2004, convicting defendant, after a nonjury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimously affirmed.

Defendant's legal sufficiency arguments are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the verdict was based on legally sufficient evidence. Furthermore, the verdict was not against the weight of the evidence. There is no basis for disturbing the court's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence supports the conclusion that defendant's use of force against store employees was for the purpose, at least in part, of retaining control of the stolen merchandise that was in his possession, that he did not voluntarily abandon any of the merchandise, and that he did not use force merely for the purpose of escaping (see e.g. People v Trotter, 24 AD3d 127 [2005], lv denied 6 NY3d 819 [2006]; People v Brown, 243 AD2d 363 [1997], lv denied 91 NY2d 889 [1998]; compare People v Nixon, 156 AD2d 144 [1989], appeal dismissed 76 NY2d 870 [1990]). Concur—Mazzarelli, J.P., Andrias, Friedman, Sweeny and Kavanagh, JJ.