PEOPLE v. KOVZELOVE (1997)

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered March 31, 1995, convicting defendant, after a nonjury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

 The court's verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence that defendant used physical force to prevent or overcome resistance to the retention of the property immediately after the taking (Penal Law 160.00 [1] ), and that defendant's actions were a sufficiently direct cause of the complainant's physical injury (see, People v. Kibbe, 35 N.Y.2d 407, 413, 362 N.Y.S.2d 848, 321 N.E.2d 773).   Defendant's argument concerning the effect of his acquittal on the charge of assault in the third degree is unpreserved and we decline to review it in the interest of justice.   We see no reason to disturb the court's credibility determinations, which are supported by the record (People v. Siu Wah Tse, 91 A.D.2d 350, 458 N.Y.S.2d 589, lv. denied 59 N.Y.2d 679, 463 N.Y.S.2d 1039, 450 N.E.2d 263).

 The trial court, in this case also the trier of fact, having indicated that it was “unclear” regarding one aspect of the complainant's testimony, appropriately exercised its discretion in directing the recall of the complainant in order to promote “clarity rather than obscurity in the development of proof” (People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243;  see also, People v. Acosta, 241 A.D.2d 385, 661 N.Y.S.2d 3).

MEMORANDUM DECISION.