PEOPLE v. ROMGOBIND

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

The PEOPLE, etc., respondent, v. Jerry ROMGOBIND, appellant.

Decided: May 29, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and RUTH C. BALKIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered March 29, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his precise challenge to the legal sufficiency of the evidence and his related claim that the jury verdict convicting him of attempted robbery in the first degree and acquitting him of criminal possession of a weapon in the fourth degree was repugnant (see CPL 470.05[2];  People v. Morciglio, 29 A.D.3d 710, 711, 813 N.Y.S.2d 680).   In any event, the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Casas, 1 A.D.3d 444, 445, 766 N.Y.S.2d 893;  People v. Lucas, 1 A.D.3d 381, 766 N.Y.S.2d 865), and the jury could have found that the defendant initially possessed a dangerous instrument without any intent to use it unlawfully (see People v. Bennette, 23 A.D.3d 489, 805 N.Y.S.2d 618;  People v. Salazar, 16 A.D.3d 439, 792 N.Y.S.2d 98;  People v. Anthony, 273 A.D.2d 246, 709 N.Y.S.2d 836).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  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).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

The trial court properly exercised its discretion in accepting a partial verdict and allowing the jury to continue its deliberations (see People v. Garner, 272 A.D.2d 873, 874, 708 N.Y.S.2d 526;  People v. Wincelowicz, 258 A.D.2d 602, 603, 685 N.Y.S.2d 741).

 The defendant's contention that the court failed to respond meaningfully to the jury's note regarding the count of attempted robbery in the first degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;  People v. Clark, 298 A.D.2d 461, 748 N.Y.S.2d 272).   In any event, the court's response to the note, which was discussed with counsel before it was rendered, was meaningful (see People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Fair, 308 A.D.2d 597, 765 N.Y.S.2d 514).

Furthermore, the defendant received the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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