People v. McMillon

Sep 29, 2006
Appeal No. 1
Versions:32 A.D.3d 1300
821 N.Y.S.2d 531

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 8, 2004. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the second degree.

It is hereby ordered that said appeal from the judgment insofar as it imposed sentence be and the same hereby is unanimously dismissed (see People v Haywood, 203 AD2d 966 [1994], lv denied 83 NY2d 967 [1994]) and the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a]). “By failing to object to County Court‘s ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion” (People v Trammell, 28 AD3d 1219, 1219 [2006]; see People v O‘Connor, 19 AD3d 1154, 1155 [2005], lv denied 5 NY3d 831 [2005]). In any event, defendant‘s contention lacks merit (see People v Tirado, 19 AD3d 712, 713 [2005], lv denied 5 NY3d 810 [2005]; People v Jones, 220 AD2d 251, 252 [1995], lv denied 88 NY2d 880 [1996]; People v Hunter, 180 AD2d 752 [1992]; see also People v Calvert, 266 AD2d 226 [1999], lv denied 94 NY2d 877 [2000]). Defendant also failed to preserve for our review his contention that the verdict is repugnant (see People v Alfaro, 66 NY2d 985, 987 [1985]), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Even assuming, arguendo, that the showup identification of defendant by the victim was unduly suggestive, we conclude that the suppression court properly determined that the victim had a “source independent of the pretrial identification procedure . . . for [his] in-court identification” of defendant (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; see People v Robinson, 8 AD3d 1028, 1030 [2004], affd 5 NY3d 738 [2005]; People v Jones, 300 AD2d 1057, 1058 [2002], lv denied 99 NY2d 629 [2003]; see generally People v Corchado, 299 AD2d 843, 844 [2002], lv denied 99 NY2d 581 [2003]). Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Scudder, Gorski and Green, JJ.