People v. Atkins — 143 A.D.2d 918

Majority

p. 918

The People of the State of New York, Respondent, v Eric Atkins, Appellant.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (O’Brien, J.),

p. 919

rendered June 6, 1984, convicting him of robbery in the second degree (four counts), criminal possession of stolen property in the third degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed on a nonexistent third count of criminal possession of stolen property in the third degree; 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. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). There is no reason to disturb the jury’s determination which credited the identification testimony of the two victims.

The defendant was inadvertently sentenced on a nonexistent third count of criminal possession of stolen property in the third degree. Because he was convicted of only two counts of this crime, the sentence on the third count is vacated. Bracken, J. P., Lawrence, Spatt and Harwood, JJ., concur.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 919