People v. McMillon

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

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.

It is hereby ordered that the resentence so appealed from be and the same hereby is unanimously affirmed. Present—Hurlbutt, J.P., Scudder, Gorski and Green, JJ.