THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. HORACE WHIPSET DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law

§ 160.10 [1] ), arising from an incident in which defendant and another individual robbed money from the victim after repeatedly punching him.  Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).  Although there were inconsistencies between the victim's testimony and his prior statements regarding the amount of money taken, his testimony “was not so inconsistent as to be incredible as a matter of law” (People v. Smith, 73 AD3d 1469, 1470, lv denied 15 NY3d 778).  “Testimony will be deemed incredible as a matter of law only where it is ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ “ (id. at 1470;  see People v. Stroman, 83 A.D.2d 370, 372–373), and that is not the case here.  “Further, it is well settled that credibility issues are best resolved by the jury” (Smith, 73 AD3d at 1470;  see People v. Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831), and we perceive no basis to disturb its determination.  Finally, considering the nature of the crime, we conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court