PEOPLE v. ALMONTE (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered March 27, 2003, convicting him of robbery in the second degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of robbery in the second degree under count two of the indictment and assault in the second degree under count three of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed.

 The defendant's contention that the prosecution failed to adduce legally sufficient evidence of his identity as one of the perpetrators is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Majors, 18 A.D.3d 886, 795 N.Y.S.2d 466, lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the identification evidence was legally sufficient.   The discrepancies in the complainant's prior statements to a police officer and the complainant's trial testimony, and the inconsistencies between the complainant's testimony and that of the police officer, were not of such magnitude as to render the complainant's testimony incredible or unreliable as a matter of law (see People v. Lambert, 272 A.D.2d 413, 709 N.Y.S.2d 189;  see also People v. Sedney, 6 A.D.3d 632, 774 N.Y.S.2d 799;  People v. Tucker, 298 A.D.2d 415, 751 N.Y.S.2d 387).   To the contrary, these discrepancies and inconsistencies, along with the complainant's intoxication and his delay in reporting the incident to the police, were all fully explored at trial and were matters to be considered by the jury in assessing the complainant's credibility (see People v. Lambert, supra;  People v. Betts, 292 A.D.2d 539, 739 N.Y.S.2d 584).   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt of robbery in the second degree under count one of the indictment was not against the weight of the evidence (see CPL 470.15[5] ).

 However, we agree with the defendant that the People failed to present legally sufficient evidence of physical injury to sustain his convictions of robbery in the second degree under count two of the indictment (see Penal Law § 160.10[2][a] ) and assault in the second degree under count three of the indictment (see Penal Law § 120.05[6] ).   Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9] ).   Although the question of whether physical injury has been established is generally for the jury to decide, “there is an objective level ․ below which the question is one of law” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358;  see People v. Barnes, 261 A.D.2d 409, 410, 690 N.Y.S.2d 70).   In this case, the evidence was legally insufficient to establish that the complainant sustained physical injury (see People v. Baez, 13 A.D.3d 463, 464, 785 N.Y.S.2d 749;  People v. Briggs, 285 A.D.2d 651, 728 N.Y.S.2d 763;  People v. Barnes, supra at 410, 690 N.Y.S.2d 70;  People v. Smith, 176 A.D.2d 904, 905, 575 N.Y.S.2d 671).

 The defendant's contention that the prosecutor's summation deprived him of a fair trial is unpreserved for appellate review, since the defendant failed to object or raised only general objections to the prosecutor's summation remarks, did not request curative instructions when his objections were sustained, and failed to move for a mistrial (see People v. Tonge, 93 N.Y.2d 838, 839, 688 N.Y.S.2d 88, 710 N.E.2d 653;  People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244;  People v. Livigni, 288 A.D.2d 323, 324, 732 N.Y.S.2d 875).   In any event, most of the challenged remarks were either responsive to the defense counsel's summation or fair comment upon the evidence (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  cf. People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564).   To the extent that some of the remarks were improper, they were not so flagrant or pervasive as to deny the defendant a fair trial (see People v. Roopchand, 107 A.D.2d 35, 36-37, 485 N.Y.S.2d 332, affd. 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924).