People v Echevarria

People v Echevarria 2015 NY Slip Op 02587 Decided on March 27, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 27, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
227 KA 11-00417

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

CARMELO ECHEVARRIA, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered January 24, 2011. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree and grand larceny in the fourth degree (two counts).

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the third degree (Penal Law § 160.05) and two counts of grand larceny in the fourth degree (§ 155.30 [4], [5]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Issues of credibility and the weight to be accorded to the evidence are primarily for the jury's determination (see People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942), and we perceive no reason to disturb the jury's resolution of those issues in this case. Contrary to defendant's further contention, we conclude that "there is not a grave risk that an innocent [person] has been convicted" (People v Henderson, 275 AD2d 948, 948, lv denied 95 NY2d 964 [internal quotation marks omitted]).

As defendant correctly concedes, by failing to object to the jury charge, he failed to preserve for our review his contention that County Court improperly marshaled the evidence when it instructed the jury on the issue of identification (see People v Savery, 305 AD2d 1071, 1072, lv denied 100 NY2d 598). In any event, that contention is without merit (see People v Harrison, 19 AD3d 705, 706, lv denied 5 NY3d 828; People v Brazzley, 287 AD2d 463, 464, lv denied 97 NY2d

679).

Entered: March 27, 2015

Frances E. Cafarell

Clerk of the Court