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People v. Johnson

263 A.D.2d 515, 691 N.Y.S.2d 922, 1999 N.Y. App. Div. LEXIS 8095
Procedural entryThis page is a short order in People v. Johnson. Read the opinion of the Court — 233 A.D.2d 887 →
Appellate Division of the Supreme Court of the State of New York·Decided July 19, 1999·Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered March 13, 1997, convicting him of robbery in the first degree, attempted assault in the second degree, criminal possession of a weapon in the second [516]*516degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has not preserved for appellate review his contention that the identification testimony was legally insufficient to establish his guilt beyond a reasonable doubt (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the "defendant’s guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]).

The trial court properly charged attempted assault in the second degree as a lesser-included offense of attempted murder in the second degree, because a reasonable view of the evidence supported the conclusion that the defendant committed the lesser offense, but did not commit the greater offense (see, CPL 300.50 [1]; People v Butler, 84 NY2d 627; People v Cabassa, 79 NY2d 722, cert denied sub nom. Lind v New York, 506 US 1011; People v Glover, 57 NY2d 61; People v Youmans, 251 AD2d 436).

Moreover, the sentence was neither excessive nor illegal (see, Penal Law § 70.25 [2]; People v Moten, 225 AD2d 635; People v Nelson, 179 AD2d 784; People v Cahill, 167 AD2d 411; People v Suitte, 90 AD2d 80). Ritter, J. P., Thompson, Altman and Friedmann, JJ., concur.

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People v. Johnson, 263 A.D.2d 515, 691 N.Y.S.2d 922, 1999 N.Y. App. Div. LEXIS 8095 (N.Y. Ct. App. 1999).

263 A.D.2d 515 (People v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Gray
652 N.E.2d 919 (New York Court of Appeals, 1995)
People v. Butler
644 N.E.2d 1331 (New York Court of Appeals, 1994)
People v. . Gaimari
68 N.E. 112 (New York Court of Appeals, 1903)
People v. Glover
439 N.E.2d 376 (New York Court of Appeals, 1982)
People v. Contes
454 N.E.2d 932 (New York Court of Appeals, 1983)
People v. Cabassa
79 N.Y.2d 722 (New York Court of Appeals, 1992)
People v. Garafolo
44 A.D.2d 86 (Appellate Division of the Supreme Court of New York, 1974)
People v. Suitte
90 A.D.2d 80 (Appellate Division of the Supreme Court of New York, 1982)
People v. Udzinski
146 A.D.2d 245 (Appellate Division of the Supreme Court of New York, 1989)
People v. Cahill
167 A.D.2d 411 (Appellate Division of the Supreme Court of New York, 1990)
People v. Nelson
179 A.D.2d 784 (Appellate Division of the Supreme Court of New York, 1992)
People v. Moten
225 A.D.2d 635 (Appellate Division of the Supreme Court of New York, 1996)
People v. Youmans
251 A.D.2d 436 (Appellate Division of the Supreme Court of New York, 1998)
Lind v. New York
506 U.S. 1011 (Supreme Court, 1992)