People v. Boyer

• Decision Date: 17 June 2002
• Citation: 295 A.D.2d 529,744 N.Y.S.2d 686
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>RAYMOND BOYER, Also Known as RAYVENAIR GIBSON, Appellant.
• Court: New York Supreme Court — Appellate Division

295 A.D.2d 529

744 N.Y.S.2d 686

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.RAYMOND BOYER, Also Known as RAYVENAIR GIBSON, Appellant.

Decided June 17, 2002.

Feuerstein, J.P., O'Brien, Townes and Cozier, JJ., concur.

Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of the crimes of which he was convicted beyond a reasonable doubt. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

However, as correctly conceded by the People, the defendant's conviction of robbery in the third degree was a concurrent inclusory count of one of the counts of robbery in the second degree (see People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Florentino, 196 AD2d 881). Thus, the conviction of robbery in the third degree must be reversed and that count of the indictment dismissed (see People v Lee, 39 NY2d 388).

The defendant's remaining contention is without merit.