PEOPLE v. RICCO

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

The PEOPLE of the State of New York, Respondent, v. Michael RICCO, Defendant-Appellant.

Decided: October 19, 2004

NARDELLI, J.P., SAXE, SULLIVAN, ELLERIN, SWEENY, JJ. Furman Law Firm, New York (Alireza Dilmaghani of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 8, 2002, convicting defendant, after a jury trial, of attempted murder in the first degree, attempted aggravated assault upon a police or peace officer (two counts), robbery in the first degree, assault in the second degree, criminal possession of a weapon in the second degree (six counts) and unlawful imprisonment in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 45 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning identification (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Each of the victims made reliable identifications that were corroborated by the testimony of numerous eyewitnesses, and there was extensive evidence establishing that defendant fired his pistol at one of the police officers attempting to arrest him.   Defendant's intent to forcibly take property from the robbery victim could be readily inferred from the circumstances (see People v. Smith, 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132 [1992];  People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] ).   The element of physical injury was established by the robbery victim's testimony that she suffered bruising to her chest and back, scraped and bleeding knees, as well as a bruised and swollen temple that hurt for an extended period of time, as a result of being struck in the head with a pistol (see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994];  People v. Harvey, 309 A.D.2d 713, 766 N.Y.S.2d 194 [2003], lv. denied 1 N.Y.3d 573, 775 N.Y.S.2d 790, 807 N.E.2d 903 [2003] ).

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