People v Bermudez

People v Bermudez 2009 NY Slip Op 09393 [68 AD3d 575] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Guillermo Bermudez, Appellant.

—[*1] Stanley Neustadter, New York (Christopher Fenlon of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered June 2, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning identification and credibility. In addition to a reliable identification by the victim, defendant was connected to the crime through cell phone records. Although the phone service subscriber was a person other than defendant, there was a sufficient circumstantial linkage between defendant and the phone, and we reject defendant's related claim that the phone records should have been excluded as irrelevant (see People v Mirenda, 23 NY2d 439, 452-454 [1969]).

Defendant's challenge to the court's response to a jury note is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court provided a meaningful response that could not have caused defendant any prejudice. Concur—Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.