People v. Cruz

197 A.D.2d 497, 604 N.Y.S.2d 718, 1993 N.Y. App. Div. LEXIS 10098

Opinion

—Judgment, Supreme Court, New York County (Angela Mazzarelli, J.), rendered August 22, 1991, convicting defendant, after a jury trial, of attempted robbery in the first degree and sentencing him, apparently as a second violent felony offender, to a term of 6 to 12 years, unanimously modified, on the law and the facts, to the extent of vacating the sentence and remanding the matter for resentencing, and otherwise affirmed.

Viewing the evidence in a light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), we find that the evidence was sufficient as a matter of law to support the verdict finding defendant guilty beyond a reasonable doubt of attempted robbery in the first degree. Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). The issue raised by defendant concerning his intent to take anything from the victim was properly placed before the jury, and we find no reason on the record before us to disturb its determination. Nor do we find merit to defendant’s argument that his sentence was excessive. However, as the record indicates that the court may have incorrectly sentenced defendant as a second violent, rather than nonviolent felony offender, we vacate the sentence and remand for resentencing. Concur—Carro, J. P., Rosenberger, Ellerin and Kassal, JJ.