PEOPLE v. OWENS (2006)

Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[1], [2][a] ) and one count each of assault in the second degree (§ 120.05[6] ) and attempted grand larceny in the fourth degree (§§ 110.00, 155.30 [5] ).   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to establish that the victim sustained a physical injury (see People v. Liggins, 2 A.D.3d 1325, 770 N.Y.S.2d 263;  cf. People v. Velasquez, 202 A.D.2d 1037, 609 N.Y.S.2d 717, lv. denied 83 N.Y.2d 1008, 616 N.Y.S.2d 489, 640 N.E.2d 157).   We further conclude that County Court did not abuse its discretion in denying defendant's motion to file a late alibi notice (see CPL 250.20[1];  People v. Mensche, 276 A.D.2d 834, 835-836, 714 N.Y.S.2d 377, lv. denied 95 N.Y.2d 966, 722 N.Y.S.2d 484, 745 N.E.2d 404).   Also contrary to defendant's contention, the manner in which the photo array was exhibited to the victim was not unduly suggestive (see People v. Keith, 23 A.D.3d 1133, 804 N.Y.S.2d 206).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: