PEOPLE v. WHARTON (2019)

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered February 28, 2017, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him to a term of 41/212 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations, including its resolution of alleged inconsistencies between the victims' testimony and a surveillance videotape.

The court properly declined to submit attempted robbery in the third degree to the jury, because there was no reasonable view of the evidence, viewed most favorably to defendant, that he attempted to take property by force, but not by displaying what appeared to be a firearm (see generally People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ).  Both victims testified that defendant displayed what appeared to be a handgun, and there was no reason for the jury to selectively discredit only that portion of each victim's testimony (see e. g. People v. Davis, 47 A.D.3d 506, 507, 849 N.Y.S.2d 257 [1st Dept. 2008], lv denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [2008] ).  There was nothing in the videotape, or in the testimony of a witness who saw only part of the incident, to warrant a different conclusion.

We perceive no basis for reducing the sentence.