PEOPLE v. ADAMS (2007)

On appeal from a judgment convicting him upon a jury verdict of two counts of robbery in the second degree (Penal Law § 160.10[1], [2][a] ), defendant contends that Supreme Court erred in denying his motion for a mistrial on the ground that the identification testimony of an eyewitness presented at trial violated the court's pretrial suppression ruling.   Here, the identification testimony did not violate the court's pretrial ruling, and thus the court properly denied defendant's motion for a mistrial (see generally CPL 280.10[1] ).   In any event, even assuming, arguendo, that the court erred in admitting the identification testimony of the eyewitness, we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Parker, 304 A.D.2d 146, 158-159, 755 N.Y.S.2d 521, lv. denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488).   The victim identified defendant as his attacker, and the victim's genetic material was found on defendant's clothing and hands when defendant was apprehended.   In addition, the victim informed the police that he had bitten his attacker and, when he was apprehended by the police, defendant had a bite mark on his arm.   Thus, the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the alleged error (see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Defendant failed to preserve for our review his contention that the evidence of physical injury is legally insufficient to support the conviction of robbery in the second degree under Penal Law § 160.10(2)(a) (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, contrary to defendant's further contention, the sentence is not unduly harsh or severe.

Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted upon a plea of guilty of two counts of robbery in the second degree under Penal Law § 160.10(1), and it must therefore be amended to reflect that he was convicted upon a jury verdict and under Penal Law § 160.10(1) and (2)(a) (see People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353;  People v. Benson, 265 A.D.2d 814, 816, 697 N.Y.S.2d 222, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097, cert. denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499).

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

MEMORANDUM: