PEOPLE v. HENNINGS (2008)

 Defendant appeals from a judgment convicting him following a jury trial of one count each of burglary in the second degree (Penal Law § 140.25[1][c] ) and unlawful imprisonment in the first degree (§ 135.10) and two counts of robbery in the second degree (§ 160.10[1], [2][b] ).  We reject defendant's contention that the verdict is against the weight of the evidence.   Although a different verdict would not have been unreasonable, we conclude that the jury did not fail to give the evidence the weight it should be accorded in rejecting the misidentification theory of the defense (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   That theory was “overwhelmingly refuted by the strong identification testimony of the victim[ ]” (People v. Leising, 161 A.D.2d 1172, 1173, 555 N.Y.S.2d 963, lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 999, 561 N.E.2d 899).   Defendant failed to preserve for our review his further contention that the evidence is legally insufficient to support the unlawful imprisonment conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).

 We reject defendant's contention that County Court erred in permitting the victim to make an in-court identification of defendant.   Although the court concluded following the suppression hearing that the showup identification procedure was unduly suggestive, it nevertheless properly determined that the People established that the victim had an independent basis for his in-court identification (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Riley, 70 N.Y.2d 523, 531, 522 N.Y.S.2d 842, 517 N.E.2d 520).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: