People v. Ortiz

194 A.D.2d 313, 598 N.Y.S.2d 480, 1993 N.Y. App. Div. LEXIS 5521

Opinion

—Judgment, Supreme Court, New York County (Jay Gold, J.), rendered April 3, 1991, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree, and assault in the second degree, and sentencing him to concurrent terms of 4 to 12 years, 2 Vi to 7 Vi years, and 1 to 3 years, respectively, unanimously affirmed.

Defendant, along with his co-perpetrator, was apprehended moments after the two had brutally beat the victim on the head with a metal pipe and stole money and personal items. The victim, approaching the perpetrators on his own, made an immediate and positive prompt, confirmatory identification. Shortly afterward, the victim’s ring was recovered from defendant’s mouth.

Viewing the evidence in a light most favorable to the People, under the standards set forth in People v Bleakley (69 NY2d 490, 495), defendant’s guilt was proved beyond a reasonable doubt by overwhelming, legally sufficient evidence, and the verdict was not against the weight of the evidence. We find no basis to disturb the hearing court’s conclusion that the identification was neither police arranged nor suggestive. (People v Muhammad, 159 AD2d 266, lv denied 76 NY2d 740.) When the court personally confirmed that a sworn juror, in this two-day trial, was sick with the flu and was unlikely to be available for continued service (CPL 270.35), the court carefully set forth its conclusions as well as the basis therefor on the record. Despite defendant’s refusal to consent to the substitution of this sworn juror, we find no basis to disturb the court’s exercise of discretion (see, People v Rivera, 172 AD2d 570, lv denied 78 NY2d 926). We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Sullivan, Milonas, Kupferman and Kassal, JJ.