Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Errol WEATHERS, Defendant-Appellant.

Decided: November 15, 2002

Present PIGOTT, JR., P.J., PINE, WISNER, KEHOE, and GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [3] ) and two counts of robbery in the first degree (§ 160.15[1], [2] ).   The victim was shot with a .25 caliber handgun and robbed of a substantial amount of cash.   Defendant failed to preserve for our review his contention that Supreme Court erred in permitting the People to present eyewitness testimony that defendant possessed a .25 caliber handgun (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6][a] ).   We reject defendant's further contention that the verdict is against the weight of the evidence.   Weighing the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn therefrom, we conclude that it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   An eyewitness who knew defendant testified that he saw defendant shoot the victim, defendant's girlfriend testified that defendant admitted to her that he had robbed and shot someone, and the testimony of those two witnesses was corroborated by other witnesses.   Defendant's general motions to dismiss the indictment at the close of the People's case and after a witness had testified for defendant did not preserve for our review defendant's present contention concerning the alleged legal insufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).

 We agree with defendant, however, that he may have been improperly sentenced as a second felony offender with respect to the two counts of robbery.   The sentencing minutes and the presentence report are not in agreement with respect to the crime that is the predicate felony for defendant's status as a second felony offender.   We therefore modify the judgment by vacating the sentence imposed on the two robbery counts, and we remit the matter to Supreme Court, Erie County, for resentencing on the second and third counts of the indictment.   We have examined defendant's remaining contentions and conclude that they lack merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on the two counts of robbery in the first degree and as modified the judgment is affirmed and the matter is remitted to Supreme Court, Erie County, for resentencing on the second and third counts of the indictment.