PEOPLE v. NIEVES (2007)

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered May 20, 2004, convicting defendant, after a nonjury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

Defendant's legal sufficiency arguments are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the verdict was based on legally sufficient evidence.   Furthermore, the verdict was not against the weight of the evidence.   There is no basis for disturbing the court's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The evidence supports the conclusion that defendant's use of force against store employees was for the purpose, at least in part, of retaining control of the stolen merchandise that was in his possession, that he did not voluntarily abandon any of the merchandise, and that he did not use force merely for the purpose of escaping (see e.g. People v. Trotter, 24 A.D.3d 127, 804 N.Y.S.2d 245 [2005], lv. denied 6 N.Y.3d 819, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006];  People v. Brown, 243 A.D.2d 363, 663 N.Y.S.2d 539 [1997], lv. denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029 [1998];  compare People v. Nixon, 156 A.D.2d 144, 548 N.Y.S.2d 194 [1989], appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884 [1990] ).