         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1451
KA 11-00969
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL LEGGETT, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered December 2, 2009. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of robbery in the second degree (Penal Law §
160.10 [1]). Defendant made only a general motion for a trial order
of dismissal at the close of the People’s case (see People v Gray, 86
NY2d 10, 19), and at the close of all the proof (see People v Hines,
97 NY2d 56, 61, rearg denied 97 NY2d 678), and thus he failed to
preserve for our review his contention that the conviction is based
upon legally insufficient evidence. In any event, that contention is
without merit. Viewing the evidence in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), we conclude that
the evidence is legally sufficient to establish that defendant, acting
with his codefendant who was actually present, forcibly stole money
from the victim (see generally People v Danielson, 9 NY3d 342, 349;
People v Bleakley, 69 NY2d 490, 495). Viewing the evidence in light
of the elements of the crime as charged to the jury (see Danielson, 9
NY3d at 349), we further conclude that, although a different result
would not have been unreasonable, the jury did not fail to give the
conflicting evidence the weight it should be accorded (see generally
Bleakley, 69 NY2d at 495). Here, the issue whether defendant
participated in the robbery was based upon the credibility
determination of the jury and, upon our independent assessment of the
evidence, we conclude that there is no reason to disturb that
determination (see generally People v Delamota, 18 NY3d 107, 116-117).

     Defendant did not object to comments made by the prosecutor
during summation and thus also failed to preserve for our review his
                                 -2-                          1451
                                                         KA 11-00969

contention that he was deprived of a fair trial by those comments (see
CPL 470.05 [2]; People v Brown, 94 AD3d 1461, 1462, lv denied 19 NY3d
995). In any event, we conclude that the remarks were within the
broad bounds of permissible rhetorical comment (see Brown, 94 AD3d at
1462).

     We reject defendant’s contention that County Court abused its
discretion with respect to its Sandoval determination (see People v
Thomas, 96 AD3d 1670, lv denied 19 NY3d 1002). The court imposed the
minimum term of incarceration allowed (see Penal Law § 70.06 [6] [b]),
and thus defendant’s contention that the term of incarceration imposed
is unduly harsh and severe is without merit. Finally, to the extent
that defendant contends that the period of postrelease supervision
imposed is unduly harsh and severe, we decline to exercise our power
to modify that portion of the sentence as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [b]).




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
