As for defendant’s challenge to the weight of the evidence,2 we must, since a different verdict would not have been unrea
At trial, the owner of the convenience store, Shagufta Nasir, testified that she was working alone at the store when a man brandishing a handgun entered the premises wearing a scarf that covered a portion of his face. He ordered her to give him money from the cash register and threatened to kill her if she called the police. Nasir identified defendant as the perpetrator based on his eyes, the color of his skin and the clothing he was wearing when apprehended by the police. Because Nasir was unable to identify defendant as the perpetrator at the scene shortly after the robbery took place, her in-court identification of him was obviously suspect. However, Perry testified that moments before the robbery, she was leaving the store when a man entered with a scarf that covered his mouth and part of his nose. She recalled that the man was also wearing a white “hoodie” sweatshirt underneath a winter jacket, which had fur around its hood. A short time later, Perry was across the street when she observed the same man, his face now uncovered, walking briskly away from the store, and his jacket was partially opened revealing that it had an orange-colored lining. At trial, Perry identified defendant as the man she saw at the store, and she testified that the clothing taken from him after his arrest was similar to that worn by the man she saw leaving the store when the robbery was committed.
Another witness, Ashleigh Deronda, testified that she was in her home across the street from the store when the robbery occurred and, at about that time, observed a man wearing a “furry coat with orange inside the coat” running from the store down Reid Street toward East Main Street. She stated that the fur and the orange lining of the coat taken from defendant after his arrest were similar to that being worn by the individual she saw running down Reid Street. Also, police officer Michael Cole testified that defendant was detained near the crime scene shortly after the robbery had taken place because his clothing and, in particular, the jacket with the orange lining, matched
Defendant’s remaining arguments do not require extended discussion. In its Sandoval ruling, County Court, after weighing the relevant factors, permitted the People to cross-examine defendant regarding nine criminal convictions, but barred any questioning of him as to six others. Its decision represented a measured effort to balance the prejudice to defendant from such cross-examination with the right of the People to question him on issues that clearly pertained to his credibility (see People v Muniz, 93 AD3d 871, 875 [2012], lv denied 19 NY3d 965 [2012]; People v Wimberly, 86 AD3d 806, 807 [2011], lv denied 18 NY3d 863 [2011]; People v Smith, 63 AD3d 1301, 1304 [2009], lv denied 13 NY3d 862 [2009]).3 Moreover, defendant’s significant criminal history, including two prior felony convictions, bars any modification of this sentence (see People v Castellano, 100 AD3d at 1258; People v Boland, 89 AD3d 1144, 1146 [2011], lv denied 18 NY3d 955 [2012]).
Finally, defendant’s conviction for petit larceny must be reversed and that count in the indictment dismissed. As petit larceny is a lesser included offense of robbery in the second degree (see CPL 1.20 [37]; People v Bowman, 79 AD3d 1368, 1369 [2010], lv denied 16 NY3d 828 [2011]), the conviction for petit larceny was deemed dismissed upon defendant’s conviction of the greater offense (see CPL 300.40 [3] [b]; People v Perez, 93 AD3d 1032, 1039 [2012], lv denied 19 NY3d 1000 [2012]; People v Tucker, 91 AD3d 1030, 1031 [2012], lv denied 19 NY3d 1002 [2012]).
2.
In his motion for a trial order of dismissal, defendant simply argued that the People failed to present a prima facie case. As a result, defendant did not preserve his challenge to the legal sufficiency of the evidence (see People v Harvey, 96 AD3d 1098, 1099 n [2012], lv denied 20 NY3d 933 [Nov. 27, 2012]; People v Terry, 85 AD3d 1485, 1486 [2011], lv denied 17 NY3d 862 [2011]; *1480People v Califano, 84 AD3d 1504, 1505 [2011], lv denied. 17 NY3d 805 [2011]).
3.
County Court allowed the People to question defendant as to the circumstances surrounding his conviction for menacing in the second degree (January 2007) and two prior petit larceny convictions (October 2005 and January 2007). It permitted limited inquiry as to defendant’s two prior convictions for resisting arrest (January 2004 and June 2009), two convictions for petit larceny (December 2009 and May 2005), criminal possession of marihuana (July 2008), and criminal possession of a controlled substance in the seventh degree (March 2005). As noted, the court precluded any inquiry as to defendant’s six other convictions.