People v. Di Girolamo
| Decision Date | 04 February 1985 |
| Parties | The PEOPLE, etc., Respondent, v. Frederick Di GIROLAMO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gary C. Di Leonardo, Kew Gardens, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Karen M. Wigle, Asst. Dist. Atty., Brooklyn, of counsel; Spencer Fisher, Brooklyn, on brief), for respondent.
Before LAZER, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 12, 1982, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
Defendant asserts that the evidence was insufficient to prove his guilt beyond a reasonable doubt and to establish the crime of robbery in the first degree. In view of the jury verdict we must view the evidence in a light most favorable to the People (People v. Piazza, 48 N.Y.2d 151, 158-159, 422 N.Y.S.2d 9, 397 N.E.2d 700; People v. Kennedy, 47 N.Y.2d 196, 201, 417 N.Y.S.2d 452, 391 N.E.2d 288). Minor discrepencies between the testimony of witnesses is not sufficient to show that a witness's testimony was incredible as a matter of law (People v. Gruttola, 43 N.Y.2d 116, 400 N.Y.S.2d 788, 371 N.E.2d 506; People v. Rosenfeld, 93 A.D.2d 872, 461 N.Y.S.2d 383). Credibility is a matter reserved exclusively for the jury (People v. Concepcion, 38 N.Y.2d 211, 379 N.Y.S.2d 399, 341 N.E.2d 823; People v. Rosenfeld, supra) and we are traditionally resistant to second guessing its determination on this issue (People v. Rodriguez, 72 A.D.2d 571, 421 N.Y.S.2d 10). There was sufficient evidence in the record, if credited by the jury, to sustain its conclusion that defendant was the perpetrator.
Likewise, there was sufficient evidence to establish the threatened use of a dangerous instrument to meet the requirements of robbery in the first degree (Penal Law, § 160.15, subd. 3). A threat to immediately use a dangerous object need not be accompanied by a verbalization (People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. den. 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814). Here defendant's conduct in surrounding the complainant with his accomplices, ordering the complainant to surrender his minibike and, when complainant refused, "grabfor...
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...... In doing so, he chooses to ignore the well-settled principles of law set forth above regarding the scope of appellate review in criminal cases. As this court recently reiterated in People v. Di Girolamo, 108 A.D.2d 755, 485 N.Y.S.2d 98: . "Minor discrepancies between the testimony of witnesses is not sufficient to show that a witness's testimony was incredible as a matter of law (People v. Gruttola, 43 NY2d 116 [400 N.Y.S.2d 788, 371 N.E.2d 506]; People v. Rosenfeld, 93 AD2d 872 ). Credibility ......
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......Di Girolamo, 108 A.D.2d 755, 485 N.Y.S.2d 98). The question of credibility was properly presented to the triers of fact, and we perceive no basis for disturbing their resolution of this issue (see, People v. Harris, 133 A.D.2d 649, 651, 519 N.Y.S.2d 758; People v. Wadley, 133 A.D.2d 239, 240, 519 N.Y.S.2d ......
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