PEOPLE v. BARNETT (1998)

Judgment, Supreme Court, Bronx County (Eugene Oliver, Jr., J.), rendered May 9, 1994, convicting defendant, after a jury trial, of robbery in the second degree (two counts) and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, 6 to 12 years and 3 to 6 years, respectively unanimously affirmed.

The verdict was not against the weight of the evidence.   We see no reason to disturb the jury's determinations concerning reliability of identification testimony and credibility of witnesses, including the alibi witness.

 We reject defendant's argument that the trial court lacked authority to reinstate the first-degree robbery count that had been dismissed at the request of the prosecutor during jury selection (see, People v. Clarke, 203 A.D.2d 916, 611 N.Y.S.2d 385, lv. denied 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758).   These actions caused no cognizable prejudice to defendant.   Once reinstated, the court properly charged the lesser included offense of robbery in the second degree based on a reasonable view of the evidence.

We perceive no abuse of sentencing discretion.

We have considered defendant's other arguments and find them to be without merit.

MEMORANDUM DECISION.