PEOPLE v. ROBERTS

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

The PEOPLE, etc., respondent, v. Rico ROBERTS, appellant.

Decided: July 28, 2009

WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, L. PRISCILLA HALL, JJ. Robert D. Siano, Bronx, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Russell J. Pinilis of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered October 11, 2007, convicting him of murder in the second degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to sustain his conviction is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946).   In any event, 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, beyond a reasonable doubt, that the defendant acted in concert with, and intentionally aided, his companion, to commit the charged act of attempted robbery in the first degree (see People v. Mathis, 60 A.D.3d 697, 874 N.Y.S.2d 549;  People v. Witherspoon, 300 A.D.2d 605, 753 N.Y.S.2d 88;  People v. Mejia, 297 A.D.2d 755, 747 N.Y.S.2d 788;  People v. Ramos, 284 A.D.2d 136, 726 N.Y.S.2d 36;  People v. Davis, 260 A.D.2d 726, 729, 687 N.Y.S.2d 803), and to establish the defendant's guilt of felony murder based on the commission of that predicate crime (see People v. Miller, 60 A.D.3d 785, 874 N.Y.S.2d 580;  People v. Booker, 49 A.D.3d 658, 659, 854 N.Y.S.2d 430;  People v. Bailey, 298 A.D.2d 524, 748 N.Y.S.2d 659).   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).

 Further, the defendant failed to meet his burden of establishing the affirmative defense to felony murder (see Penal Law § 125.25[3] ).   The evidence adduced at trial demonstrated that the defendant held the victim while he and his cohort demanded money, and after his cohort shot the victim, both the defendant and his cohort rifled through the victim's pockets (see People v. Williams, 56 A.D.3d 699, 873 N.Y.S.2d 71;  People v. Roker, 52 A.D.3d 538, 859 N.Y.S.2d 687;  People v. Gonzales, 48 A.D.3d 698, 852 N.Y.S.2d 333;  People v. Jackson, 208 A.D.2d 862, 618 N.Y.S.2d 57;  People v. Simmons, 143 A.D.2d 857, 533 N.Y.S.2d 128;  People v. Brailsford, 106 A.D.2d 648, 482 N.Y.S.2d 907).

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