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People v. Bermudez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GUILLERMO BERMUDEZ, DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered June 2, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to term of 3 to 6 years, unanimously affirmed.

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.

Tom, J.P., Andrias, Saxe, McGuire, Manzanet-Daniels, JJ.

19253C/05

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 determinations concerning identification and credibility. In addition to a reliable identification by the victim, defendant was connected to the crime through cell phone records. Although the phone service subscriber was a person other than defendant, there was a sufficient circumstantial linkage between defendant and the phone, and we reject defendant's related claim that the phone records should have been excluded as irrelevant (see People v Mirenda, 23 NY2d 439, 452-454 [1969]).

Defendant's challenge to the court's response to a jury note is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court provided a meaningful response that could not have caused defendant any prejudice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091217

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