PEOPLE v. RAMOS (2004)

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered September 26, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to a term of 10 years, and otherwise affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The prior relationship among the parties, and the atypical nature of the robbery and its aftermath, presented factual issues that the jury properly resolved.   The evidence warranted the conclusion that, at the time of the robbery, defendant and his codefendant sought to permanently deprive the victim of her property, even though they later changed their minds and returned it (see People v. Smith, 140 A.D.2d 259, 260-261, 528 N.Y.S.2d 562 [1988], lv. denied 72 N.Y.2d 924, 532 N.Y.S.2d 858, 529 N.E.2d 189 [1988] ).

Defendant's challenge to the receipt in evidence of a tape recording of the victim's 911 call as an excited utterance is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it for the reasons stated in our decision on the codefendant's appeal (People v. Veeraswamy, 11 A.D.3d 345, 784 N.Y.S.2d 488 [2004] ).

 Defendant failed to preserve his challenge to a summation comment, in which the prosecutor argued to the jury that an object appearing in a videotape of defendant made shortly after the robbery was the revolver used in the robbery, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the challenged comment asked the jury to draw a reasonable inference from the evidence (see People v. Mirenda, 23 N.Y.2d 439, 452-454, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969];  People v. Del Vermo, 192 N.Y. 470, 478-482, 85 N.E. 690 [1908] ).

The record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 We find the sentence excessive to the extent indicated.