PEOPLE v. McGIBONEY (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered March 23, 2005, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   The complainant's scar satisfied the “physical injury” element of robbery in the second degree (see Penal Law § 10.00[9];  Penal Law § 160.10;  People v. Tejeda, 78 N.Y.2d 936, 937-938, 573 N.Y.S.2d 633, 578 N.E.2d 431;  People v. Williams, 23 A.D.3d 589, 590, 806 N.Y.S.2d 610;  People v. Rivera, 183 A.D.2d 792, 793, 583 N.Y.S.2d 520).   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 Contrary to the contention raised by the defendant in his supplemental pro se brief, the Supreme Court properly denied that branch of his omnibus motion which was to suppress the physical evidence found on his person.   The police had reasonable suspicion to believe that the defendant could have been armed with a knife, and the complainant's property was found during a patdown for such a weapon (see Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889;  accord Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917).   Moreover, the defendant had no expectation of privacy regarding the screwdriver admitted into evidence, which was found on a nearby bridge, and not on the defendant's person (see People v. Whitfield, 81 N.Y.2d 904, 905-906, 597 N.Y.S.2d 641, 613 N.E.2d 547;  People v. Thomas, 246 A.D.2d 611, 667 N.Y.S.2d 294).   In addition, the showup identification procedure used by the police in this case was not unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654;   People v. Loo, 14 A.D.3d 716, 789 N.Y.S.2d 247;  People v. Fox, 11 A.D.3d 709, 784 N.Y.S.2d 565).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).

The defendant's contentions raised in points I, III, and VI of his supplemental pro se brief are unpreserved for appellate review and, in any event, are without merit.   The defendant's remaining contention, raised in point II of his supplemental pro se brief, is without merit.