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People v. Delgado

Supreme Court of New York, Second Department

August 7, 2013

The People of the State of New York, respondent,
v.
Michael Delgado, appellant. Ind. No. 129/05

Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered June 13, 2007, convicting him of burglary in the first degree, robbery in the first degree, and attempted rape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his convictions of burglary in the first degree, robbery in the first degree, and attempted rape in the first degree because the prosecution failed to establish his identity as the perpetrator of those crimes is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492; People v Reid, 82 A.D.3d 1268). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), it was legally sufficient to establish the defendant's identity beyond a reasonable doubt (see People v Amico, 78 A.D.3d 1190; People v Scott, 65 A.D.3d 707). Morever, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

The defendant was not deprived of a fair trial when the Supreme Court denied his request to include in the jury charge the fact that the victim had initially made a photographic identification of another individual before identifying the defendant (see People v Melendez, 182 A.D.2d 644, 645).

RIVERA, J.P., SKELOS, CHAMBERS and AUSTIN, JJ., concur.


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