People v. Moore , 841 N.Y.S.2d 911 ( 2007 )

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered September 24, 2004. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the second 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 attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]). We reject the contention of defendant that he was deprived of a fair trial by Supreme Court’s alleged failure to give a proper jury instruction with respect to one of the essential elements of the crime charged. When reviewing a jury instruction, “we do not consider the challenged sentence alone and in a vacuum but instead must read the instruction as a whole to determine if it was likely to confuse the jury” (People v Fields, 87 NY2d 821, 823 [1995]). Here, we conclude that the jury instruction, “when considered as a whole, . . . sufficiently conveyed the correct standard” (id.). Contrary to defendant’s further contention, the sentence is not unduly harsh or severe. Present—Gorski, J.P., Smith, Centra, Fahey and Green, JJ.