People v. Smith

Judgment, Supreme Court, Bronx County (Joseph A. Cerbone, J.), rendered May 29, 1990, convicting defendant, after a jury trial, of robbery in the first degree and attempted escape in the first degree and sentencing him, as a second violent felony offender, to concurrent terms of imprisonment of 10 to 20 years and 2 to 4 years, respectively, unanimously affirmed.

Evidence at trial was that defendant and another person forcibly stole clothing from complainant while he was working in his family’s clothing store, and that during defendant’s flight from the scene of the crime, he punched complainant in the face and threatened him with a screwdriver. Shortly thereafter, the police apprehended defendant and his accomplice, recovering two pairs of pants stolen from complainant and a screwdriver. Upon an independent review of the facts, we find that the verdict on the robbery count is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The issue raised by defendant concerning complainant’s credibility, including his uncorroborated claim that he was physically assaulted and threatened with a screwdriver, was properly placed before the jury, and, after considering the competing inferences that may be drawn from the testimony, we find no reason to disturb its determination. Also without merit is defendant’s contention that the court violated his right to due process by enhancing the sentence ostensibly in consideration of two uncorroborated allegations of murder. Upon examination of the sentencing transcript and the presentence report, and mindful that a sentence should not be reduced on appeal absent a clear abuse of discretion (People v Junco, 43 AD2d 266, 268, affd 35 NY2d 419, cert denied 421 US 951; People v Garden, 176 AD2d 621, 622, lv denied 79 NY2d 947), we find no such abuse of discretion here. Concur— Murphy, P. J., Sullivan, Carro, Rosenberger and Rubin, JJ.