People v. Miles

103 A.D.2d 1017, 478 N.Y.S.2d 217, 1984 N.Y. App. Div. LEXIS 19710

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant’s conviction of attempted robbery in the second degree is not against the weight of the evidence. It was within the province of the jury to conclude that the 77-year-old victim was mistaken in his testimony that no one stuck his hands in his pockets during the robbery attempt, and that the eyewitness, who claimed that he saw defendant search the victim’s pockets, gave the more credible account of the incident. Further, since the eyewitness and defendant were known to each other, there was no identification within the meaning of CPL 710.30 (see People v Tas, 51 NY2d 915, 916; People v Gissendanner, 48 NY2d 543, 552). No Wade hearing was required (CPL 710.60, subd 3, par [a]). Other issues raised have been examined and found to be without merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — attempted robbery, second degree.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.