People v. Benton

131 A.D.2d 492, 515 N.Y.S.2d 1014, 1987 N.Y. App. Div. LEXIS 47942

Opinion

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Demakos, J.), rendered October 14, 1982, convicting him of robbery in the first degree (three counts), criminal use of a firearm in the first degree (four counts), rape in the first degree (three counts), sodomy in the first degree (five counts) and robbery in the second degree (three counts) under indictment No. 2961/ 81, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered October 14, 1982, adjudging him in violation of probation under indictment No. 21/80, upon his plea of guilty, and imposing sentence.

Ordered that the judgment and amended judgment are affirmed.

The conduct of the prosecutor and court did not deprive the defendant of a fair trial (see, People v Chappell, 122 AD2d 889, lv denied 68 NY2d 999). The asserted errors in the alibi charge were not excepted to, and are thus unpreserved for appellate review (see, People v Whalen, 59 NY2d 273, 279-280). In any event, in light of the overwhelming proof of guilt, any error was harmless (cf., People v Bigelow, 106 AD2d 448; People v Joiner, 105 AD2d 805; People v Lee, 110 AD2d 913; People v Francis, 110 AD2d 906).

The court also correctly adjudged the defendant to be in violation of probation under indictment No. 21/80 and properly imposed a new sentence.

The defendant’s remaining contentions have been examined and are found to be lacking in merit. Thompson, J. P., Lawrence, Weinstein and Rubin, JJ., concur.