People v. Rodriguez

167 A.D.2d 326, 562 N.Y.S.2d 75, 1990 N.Y. App. Div. LEXIS 14096

Opinion

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered March 23, 1989, convicting defendant, after a jury trial, of robbery in the first degree and sentencing him, as a second violent felony offender, to an indeterminate term of imprisonment of from 7 Vi to 15 years, unanimously affirmed.

Defendant and an unapprehended accomplice were charged with the robbery of a cabdriver. The cabdriver testified that he picked up defendant and another in the Times Square area, had an opportunity to observe them on one occasion when he ran out of gas and had to refill the tank, and they observed him pay for the gasoline with cash. When he drove them to a Bronx location, they both pulled knives, and stole cash and jewelry. The complainant did not recall that defendant had tattoos on his hand, which were displayed to the jury at trial. The complainant observed defendant at various times after the robbery in the Times Square area, eventually alerting police officers in time to apprehend him.

Defendant, at trial, attempted to exploit various minor inconsistencies in the identification evidence. The jury rejected defendant’s mistaken identity defense. It is well settled that single witness identification can provide the requisite evidence of guilt. (People v Mobley, 56 NY2d 584.) The various minor inconsistencies were for the jury to resolve, and we do not find their verdict against the weight of the evidence.

Defendant failed to preserve as a matter of law any challenge to the court’s sua sponte submission of a no adverse inference charge by reason of failure to testify (CPL 300.10), or to the court’s identification charge, and we decline to reach these issues in the interest of justice. Defendant’s challenge to the prosecutor’s summation is similarly unpreserved and does not warrant review. Concur—Kupferman, J. P., Carro, Kassal, Ellerin and Smith, JJ.