People v. Wharton ( 2019 )

People v Wharton (2019 NY Slip Op 05068)

People v Wharton

2019 NY Slip Op 05068

Decided on June 25, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 25, 2019
Renwick, J.P., Manzanet-Daniels, Webber, Oing, JJ.

9697 2252/15

[*1]The People of the State of New York, Respondent,

v

Terrence Wharton, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered February 28, 2017, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him to a term of 4½ years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). There is no basis for disturbing the jury's credibility determinations, including its resolution of alleged inconsistencies between the victims' testimony and a surveillance videotape.

The court properly declined to submit attempted robbery in the third degree to the jury, because there was no reasonable view of the evidence, viewed most favorably to defendant, that he attempted to take property by force, but not by displaying what appeared to be a firearm (see generally People v Rivera, 23 NY3d 112, 120 [2014]). Both victims testified that defendant displayed what appeared to be a handgun, and there was no reason for the jury to selectively discredit only that portion of each victim's testimony (see e.g. People v Davis, 47 AD3d 506, 507 [1st Dept 2008], lv denied 10 NY3d 861 [2008]). There was nothing in the videotape, or in the testimony of a witness who saw only part of the incident, to warrant a different conclusion. We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 25, 2019

CLERK