People v Sierra
2014 NY Slip Op 00538 [113 AD3d 880]
January 29, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 5, 2014


The People of the State of New York, Respondent,
v
Francisco Sierra, Appellant.

[*1] Steven Banks, New York, N.Y. (Martin M. Lucente and Alan S. Axelrod of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Gavrin, J.), rendered March 20, 2009, convicting him under indictment No. 615/08 of robbery in the second degree and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court also rendered March 20, 2009, revoking a sentence of probation previously imposed under superior court information No. 2216/05 by the same court (Chin-Brandt, J.), upon a finding that he had violated a condition thereof, upon his admission, and sentencing him to a determinate term of imprisonment of three years upon his previous conviction of attempted assault in the second degree to be served consecutively to the sentence imposed under indictment No. 615/08.

Ordered that the judgment is affirmed; and it is further,

Ordered that the amended judgment is modified, on the law, by vacating the sentence imposed; as so modified, the amended judgment is affirmed and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.

Contrary to the People's contention, the defendant's claim that the evidence was legally insufficient to support his conviction of robbery in the second degree under Penal Law § 160.10 (1) is preserved for appellate review (see CPL 470.05 [2]). However, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt of robbery in the second degree and criminal possession of stolen property in the fifth degree beyond a reasonable doubt (see People v John, 51 AD3d 819, 820 [2008]; People v Lyons, 197 AD2d 708, 709 [1993]). 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 NY3d 342, 348 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). [*2]

The sentence imposed for the defendant's conviction of robbery in the second degree was not excessive (see People v Suitte, 90 AD2d 80 [1982]). However, as the defendant argues, and the People correctly concede, the sentence imposed on the defendant's conviction of attempted assault in the second degree, after his previous sentence of probation was revoked, was improper. The sentencing court incorrectly imposed a determinate sentence, and an indeterminate sentence is required (see Penal Law � 70.00 [2] [e]; [3] [b]). Accordingly, we remit the matter to the Supreme Court, Queens County, for resentencing on the defendant's conviction of attempted assault in the second degree. Eng, P.J., Dillon, Balkin and Sgroi, JJ., concur.