PEOPLE v. NIEVES

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

The PEOPLE of the State of New York, Respondent, v. Alexis NIEVES, Defendant-Appellant.

Decided: June 21, 2005

TOM, J.P., SAXE, MARLOW, ELLERIN, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Brian J. Pollock of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), rendered November 10, 1999, as amended February 7, 2000, convicting defendant, after a jury trial, of robbery in the first and second degrees and attempted assault in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 12 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The credible evidence clearly established defendant's guilt of first-degree robbery under a theory of displaying what appeared to be a firearm.

 Even if we were to find that a brief portion of a 911 tape, properly admitted as a present sense impression, constituted speculation or lay opinion on the part of the declarant, we would find that this vague and isolated remark did not cause any prejudice to defendant.

Defendant's remaining contentions, including his constitutional arguments, are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.