People v. Sweet

167 A.D.2d 937, 563 N.Y.S.2d 701, 1990 N.Y. App. Div. LEXIS 14515

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a conviction for robbery in the first and second degrees and criminal possession of a weapon in the second degree. Although there was conflicting evidence, the testimony of the victim was not incredible as a matter of law, and our independent review of the record discloses no reason to disturb the jury’s resolution of witness credibility (see, People v Christian, 139 AD2d 896, lv denied 71 NY2d 1024; see also, People v Bleakley, 69 NY2d 490, 495).

The trial court did not abuse its discretion in admitting rebuttal evidence. The victim’s testimony was offered to disprove a factual version of the event that was presented by two defense witnesses and was not elicited solely to impeach the credibility of those witnesses (see, People v Alvino, 71 NY2d 233, 248). The issue concerning improper bolstering was not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our discretionary power of review (see, CPL 470.15 [6]). (Appeal from judgment of Supreme Court, Erie County, McCarthy, J.—robbery, first degree.) Present—Callahan, J. P., Doerr, Denman, Green and Balio, JJ.