Judgment, Supreme Court, Bronx County (Albert Lorenzo, J. at hearing; Analisa Torres, J. at jury trial and sentencing), rendered August 11, 2009, convicting defendant of robbery in the first degree, criminal possession of stolen property in the fifth degree, and two counts of criminal possession of a controlled substance in the seventh degree, and sentencing him to an aggregate term of 5 years, unanimously affirmed.
Decided on January 26, 2012
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.
Mazzarelli, J.P., Saxe, Catterson, Acosta, Roman, JJ.
The court properly denied defendant's suppression motion. Upon defendant's lawful arrest at the door of his apartment, the police properly conducted a limited protective sweep of the apartment to determine if there was anyone present who might destroy evidence or pose a threat to the officers (see Maryland v Buie, 494 US 325, 334 ). The robbery victim had provided information warranting a reasonable belief that other participants in the robbery might be present in the apartment. The record supports the hearing court's finding that the recovery of incriminating evidence from a partly open closet was justified under the plain view doctrine, and was within the scope of the protective sweep (see People v Lasso-Reina, 305 AD2d 121, 122 , lv denied 100 NY2d 595 ).
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of inconsistencies in the testimony of the prosecution witnesses.
The court properly denied defendant's request for a missing witness charge, since defendant failed to meet his burden of showing that the uncalled witness would have provided material, non-cumulative testimony (see People v Brunner, 67 AD3d 464, 465 , affd 16 NY3d 820 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 26, 2012
© 1992-2012 VersusLaw ...