People v Brown

People v Brown 2006 NY Slip Op 08493 [34 AD3d 1303] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent, v Joey L. Brown, Appellant.

—[*1]Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered September 27, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree and robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of one count of burglary in the first degree (Penal Law § 140.30 [2]) and two counts of robbery in the second degree (§ 160.10 [1], [2] [a]). Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). According great deference to the jury's opportunity to "view the witnesses, hear the testimony and observe demeanor" (id.), we conclude that the jury was entitled to credit the victim's identification testimony and to reject the alibi testimony presented by defendant. The sentence is not unduly harsh or severe. Present—Hurlbutt, A.P.J., Kehoe, Smith and Green, JJ.