         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
59
KA 07-00754
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CAL WILLIAMS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered February 21, 2007. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree (three
counts), robbery in the second degree (eight counts) and grand larceny
in the third degree (three counts).

     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 three counts each of robbery in the first
degree (Penal Law § 160.15 [4]) and grand larceny in the third degree
(§ 155.35), and eight counts of robbery in the second degree (§ 160.10
[1]), in connection with his participation in three separate bank
robberies. In light of the absence of any evidence at the suppression
hearing that the police procedures used in creating and presenting
photo arrays created a substantial likelihood that defendant was
singled out for identification, we reject defendant’s contention that
County Court erred in refusing to suppress the identification
testimony presented at trial (see generally People v Chipp, 75 NY2d
327, 335-336, cert denied 498 US 833; People v Martinez, 298 AD2d 897,
897-898, lv denied 98 NY2d 769, cert denied 538 US 963, reh denied 539
US 911). To the extent that defendant’s contention with respect to
the alleged insufficiency of the evidence to support the conviction is
preserved for our review (see People v Gray, 86 NY2d 10, 19), we also
reject that contention. Contrary to that part of defendant’s
contention that is preserved for our review, the testimony of the
witness who identified defendant as having participated in the second
of the three robberies was not incredible as a matter of law, and we
note in any event that defense counsel thoroughly cross-examined her
on her ability to identify defendant and the jury nevertheless
credited her testimony (see People v Baker, 30 AD3d 1102, 1102-1103,
                                 -2-                            59
                                                         KA 07-00754

lv denied 7 NY3d 846). Further, 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 conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

     We agree with defendant, however, that the aggregate consecutive
sentence of imprisonment of 150 years is unduly harsh and severe in
light of the absence of any violence or injuries sustained during the
robberies. Because that aggregate consecutive sentence is reduced by
operation of law to an aggregate maximum term of 50 years pursuant to
Penal Law § 70.30 (1) (e) (vi), however, we see no reason to modify
the sentence.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
