PEOPLE v. SMITH (2000)

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered November 21, 1996, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, and judgment, same court (Caesar Cirigliano, J.), rendered April 23, 1997, convicting defendant, after a jury trial, of robbery in the first and second degrees and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 10 years, 7 years and 1 year, respectively, to run consecutively with the sentence imposed on the controlled substance conviction, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   Defendant's accessorial liability could be reasonably inferred from the totality of the circumstances, including defendant's approaching a gas station attendant at 1:45 A.M. after the attendant finished servicing a customer and engaging the attendant in a conversation, thereby keeping him outside his store;  acknowledgment of the unapprehended gunman's presence when the gunman arrived, which was followed by the gunman nodding to the codefendant;  abruptly ending his conversation with the attendant and slowly walking away to the station's perimeter and looking in both directions, while the codefendant walked in another direction and did the same;  remaining nearby until the robbery was completed at which time he swerved and walked toward the codefendant;  running away from the scene and into the park in close proximity to the codefendant and the gunman;  and his apprehension with the codefendant in a cab near the crime scene (see, People v. Cabey, 85 N.Y.2d 417, 626 N.Y.S.2d 20, 649 N.E.2d 1164;  People v. Harris, 271 A.D.2d 258, 706 N.Y.S.2d 392).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.