People v. Owens , 809 N.Y.S.2d 745 ( 2006 )

Appeal from a judgment of the Monroe County Court (Frank P Geraci, Jr., J.), rendered February 19, 2003. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the second degree (two counts), assault in the second degree and attempted grand larceny in the fourth degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1], [2] [a]) and one count each of assault in the second degree (§ 120.05 [6]) and attempted grand larceny in the fourth degree (§§ 110.00, 155.30 [5]). Viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to establish that the victim sustained a physical injury (see People v Liggins, 2 AD3d 1325 [2003]; cf. People v Velasquez, 202 AD2d 1037 [1994], lv denied 83 NY2d 1008 [1994]). We further conclude that County Court did not abuse its discretion in denying defendant’s motion to file a late alibi notice (see CPL 250.20 [1]; People v Mensche, 276 AD2d 834, 835-836 [2000], lv denied 95 NY2d 966 [2000]). Also contrary to defendant’s contention, the manner in which the photo array was exhibited to the victim was not unduly suggestive (see People v Keith, 23 AD3d 1133 [2005]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.