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

465
KA 10-02118
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALVIN E. SIMMONS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Joan S.
Kohout, A.J.), rendered September 3, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of robbery in the first degree (Penal Law § 160.15 [3]),
defendant contends that the evidence is legally insufficient to
support the conviction because the People failed to establish that he
“actually possessed a dangerous instrument at the time of the crime”
(People v Pena, 50 NY2d 400, 407, rearg denied 51 NY2d 770, cert
denied 449 US 1087). We reject that contention. Viewing the evidence
in the light most favorable to the prosecution (see People v Contes,
60 NY2d 620, 621), we conclude that the victim’s testimony that
defendant removed a knife from his pocket immediately before asking
for money is legally sufficient to establish that defendant possessed
a dangerous instrument (see generally People v Mitchell, 59 AD3d 739,
739-740, lv denied 12 NY3d 918; People v Thompson, 273 AD2d 153, 153,
lv denied 95 NY2d 908). Contrary to defendant’s contention, any
inconsistency between the victim’s trial testimony and the victim’s
testimony from prior proceedings was not so great as to render his
trial testimony incredible as a matter of law (see People v Baker, 30
AD3d 1102, 1102, lv denied 7 NY3d 846).

     Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence with respect to whether he used or
threatened to use a dangerous instrument inasmuch as he did not move
for a trial order of dismissal on that ground (see People v Gray, 86
NY2d 10, 19; People v Holloway, 97 AD3d 1099, 1099, lv denied 19 NY3d
1026). In any event, that contention lacks merit inasmuch as “[t]he
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                                                         KA 10-02118

jury could have reasonably concluded that defendant . . . made an
implied threat to use the [knife] against the [victim]” (People v
Espada, 94 AD3d 451, 452, lv denied 19 NY3d 1025; see Mitchell, 59
AD3d at 739-740; People v Boisseau, 33 AD3d 568, 568, lv denied 8 NY3d
844).

     Finally, 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 People v Johnson, 105 AD3d 1452, 1452-1453, lv denied 21
NY3d 1016; see generally People v Bleakley, 69 NY2d 490, 495).
Although defendant testified that he did not possess a knife and that
the victim voluntarily gave him the money, “[g]reat deference is to be
accorded 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 Curry, 82 AD3d
1650, 1651, lv denied 17 NY3d 805 [internal quotation marks omitted]),
and we see no basis to disturb the jury’s credibility determinations.




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
