People v. Nieves

Judgment, Supreme Court, New York County (Michael Dontzin, J.), rendered April 7, 1983, after a jury trial, convicting defendant of robbery in the first degree and robbery in the second degree under indictment number 2481/82; three counts of robbery in the first degree, two counts of robbery in the second degree and two counts of *563burglary in the first degree under indictment number 5603/ 82; and upon defendant’s plea of guilty of robbery in the first degree; for which defendant was sentenced to concurrent terms of incarceration of from 6% to 2Ó years for each count of robbery in the first degree and burglary injthe first degree, and 5 to 15 years for each robbery in the second degree count, unanimously affirmed.

The indictments were properly consolidated pursuant to CPL 200.20 (2) (b) and (c). Defendant is not persuasive that the court below abused its discretion either in the joinder or in denying defendant’s motion to sever (see, People v Lane, 56 NY2d 1, 7-8). The acting in concert charge adequately instructed the jury as to accomplice liability. With respect to the identification charge, the court granted defendant’s request for an expanded instruction (People v Whalen, 59 NY2d 273, 279) which adequately instructed the jury on weighing a witness’s credibility and apprised the jury that identification must be proved beyond a reasonable doubt. Having failed to object to the supplemental instruction on identification, defendant has waived any appellate challenge to it as a matter of law (People v Contes, 60 NY2d 620). Concur Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ.