        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

485
KA 11-00308
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WAYNE M. JOHNSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered June 27, 2008. The judgment convicted
defendant, upon a nonjury verdict, of robbery in the first degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a nonjury verdict of robbery in the first degree
(Penal Law § 160.15 [3]) and, in appeal No. 2, he appeals from a
judgment convicting him upon his plea of guilty of robbery in the
first degree (§ 160.15 [3]) and robbery in the third degree (§
160.05). Viewing the evidence in light of the elements of the crime
in the nonjury trial in appeal No. 1 (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495). The
victim and another witness testified that defendant brandished a long
kitchen knife while fleeing from the robbery. Although defendant
testified that he neither brandished a knife nor had one on his person
during or in immediate flight from the robbery, it is well settled
that “[g]reat deference is to be accorded to the [factfinder’s]
resolution of credibility issues based upon its superior vantage point
and its opportunity to view witnesses, observe demeanor and hear the
testimony” (People v Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d 956
[internal quotation marks omitted]). We see no basis to disturb
County Court’s credibility determinations (see People v Maxwell, 103
AD3d 1239, 1240).

     Defendant contends that, if this Court reverses the judgment of
conviction in appeal No. 1, then we should likewise reverse the
judgment of conviction in appeal No. 2. We affirm the judgment in
                                 -2-                        485
                                                         KA 11-00308

appeal No. 2, however, in view of our determination in appeal No. 1
(cf. People v Baker, 20 NY3d 354, 364).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
