People v. Serrano

305 A.D.2d 280, 761 N.Y.S.2d 160, 2003 N.Y. App. Div. LEXIS 5850

Opinion

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered May 12, 2000, convicting defendant, after a jury trial, of robbery in the second degree and three counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 35 years to life, and order, same court and Justice, entered on or about March 20, 2002, which denied defendant’s motion pursuant to CPL 440.20 to set aside the sentence, unanimously affirmed.

The second-degree robbery verdict was not against the weight of the evidence. The element of being aided by another person actually present, as required under Penal Law § 160.10 (1), was established by the victim’s clear testimony that before someone covered his head with a blanket he was able to see that there were two participants in the robbery. Moreover, the robber who spoke to the victim during the incident repeatedly used the word “we,” as in “We just want to rob the place.”

The court properly exercised its discretion in admitting into evidence a sweatsuit recovered from defendant’s apartment, since, according to the victim, it was the same distinct shade of brown as the clothing worn by one of the robbers (see People v Mirenda, 23 NY2d 439, 452-454 [1969]; People v Del Vermo, 192 NY 470, 478-482 [1908]). We have considered and rejected defendant’s remaining arguments concerning the admission of the sweatsuit. Concur — Buckley, P.J., Andrias, Sullivan, Lerner and Friedman, JJ.