People v. Oguntunji

119 A.D.3d 712, 988 N.Y.S.2d 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 2014
• Docket: 2012-07777
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered August 7, 2012, convicting him of robbery in the third degree, grand larceny in the fourth degree (five counts), and criminal possession of stolen property in the fifth degree (three counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s challenge to the legal sufficiency of the evidence supporting his conviction for robbery in the third degree is unpreserved for appellate review, as the defendant never moved for a trial order of dismissal of that count, and his motion pursuant to CPL 330.30 to set aside the jury verdict on that count was not sufficient to preserve his challenge for appellate review (see People v Pitre, 108 AD3d 643 [2013]; People v Joseph, 74 AD3d 840 [2010]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), it was legally sufficient to establish beyond a reasonable doubt the defendant’s guilt of that count, including that he used physical force upon the complainant in order to overcome her resistance to the taking of her property (see Penal Law § 160.00; People v Dixon, 232 AD2d 653, 653-654 [1996]; People v Ross, 180 AD2d 698 [1992]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Rivera, J.P, Balkin, Chambers and Miller, JJ., concur.