People v. Garner

Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), rendered August 9, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree and intimidating a victim or witness in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, following a jury trial, of robbery in the first degree (Penal Law § 160.15 [4]), robbery in the second degree (§ 160.10 [1]) and intimidating a victim or witness in the third degree (§ 215.15 [1]), defendant contends that the evidence is legally insufficient to support the conviction. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We also reject defendant’s contention that the verdict is against the weight of the evidence (see generally id.). Where, as here, witness credibility is of paramount importance, we accord “[g]reat deference ... to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (id.). Defendant failed to preserve for our review his further contention that he was denied a fair trial based on prosecutorial misconduct (see People v Bones, 50 AD3d 1527 [2008]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We conclude that Supreme Court properly allowed the People to cross-examine defendant’s alibi witnesses concerning their pretrial silence inasmuch as the People established an appropriate foundation for that questioning (see People v Dawson, 50 NY2d 311, 321 [1980]; People v Cain, 9 AD3d 827, 828 [2004], lv denied 3 NY3d 671 [2004]). The court also properly allowed the People to treat a prosecution witness as a hostile witness (see People v Smith, 286 AD2d 878 [2001], lv denied 98 NY2d 641 [2002]; People v Davis, 163 AD2d 826 [1990], lv denied 76 NY2d 939 [1990]). Inasmuch as defendant failed to request a missing witness charge until after the close of proof, his request was properly denied as untimely (see People v France, 265 AD2d 424 [1999], lv denied 94 NY2d 823 [1999]). Finally, we conclude that the court did not abuse its discretion in denying defendant’s request for youthful offender status (see People v Pappas, 198 AD2d 918 [1993], lv denied 82 NY2d 928 [1994]; see generally People v Drayton, 39 NY2d 580, 584 [1976], rearg denied 39 NY2d 1058 [1976]), and that the sentence is not unduly harsh or severe.

Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of intimidating a victim or witness in the third degree under Penal Law § 215.15 (4), and it must therefore be amended to reflect that he was convicted under Penal Law § 215.15 (1) (see People v Saxton, 32 AD3d 1286 [2006]). Present—Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.