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

1143
KA 14-00803
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADRIAN BROWN, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered April 24, 2014. 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
upon a jury verdict of robbery in the second degree (Penal Law
§ 160.10 [1]). Contrary to defendant’s contention, we conclude that
County Court properly exercised its discretion at trial in permitting
the responding police officers to identify defendant as one of the
perpetrators depicted in the surveillance videos of the crime inasmuch
as there was some basis for concluding that the officers were more
likely to identify defendant correctly from the videos than was the
jury (see People v Montanez, 135 AD3d 528, 528, lv denied 27 NY3d
1072; People v Magin, 1 AD3d 1024, 1025; see generally People v
Rivera, 259 AD2d 316, 316-317). The officers’ testimony thus
“ ‘served to aid the jury in making an independent assessment
regarding whether the man in the [video] was indeed the defendant’ ”
(Montanez, 135 AD3d at 528). We note that the court properly
instructed the jury that the officers merely provided their opinions
that defendant was depicted in the videos and that the jurors were the
ultimate finders of fact on the issue of the identity of the
perpetrators (see Rivera, 259 AD2d at 317; see generally People v
Walker, 96 AD3d 1481, 1482, lv denied 20 NY3d 989), and the jury is
presumed to have followed the court’s instructions (see Walker, 96
AD3d at 1482).

     We reject defendant’s contention that the court erred in denying
his request to charge the lesser included offense of attempted robbery
in the second degree. Viewing the evidence in the light most
                                 -2-                             1143
                                                            KA 14-00803

favorable to defendant, we conclude that there is no reasonable view
of the evidence to support a finding that he committed the lesser but
not the greater offense (see People v Wells, 18 AD3d 482, 483, lv
denied 5 NY3d 811). Indeed, given the evidence adduced at trial, “the
jury would have to resort to ‘sheer speculation’ to determine that
defendant and his codefendants attempted to rob the victim but did not
take any property” (People v McCullough, 278 AD2d 915, 916-917, lv
denied 96 NY2d 803).

     Contrary to defendant’s contention, we conclude that the
evidence, including the surveillance videos and the police officers’
testimony, when viewed in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), is legally sufficient to establish
defendant’s identity, and thus to support the conviction of the crime
charged (see People v Birmingham, 261 AD2d 942, 942, lv denied 93 NY2d
1014; see generally People v Bleakley, 69 NY2d 490, 495). Moreover,
viewing the evidence in light of the elements of the crime 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 Bleakley, 69 NY2d at 495).

     Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
