People v. Brown

189 A.D.2d 653, 592 N.Y.S.2d 330, 1993 N.Y. App. Div. LEXIS 263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1993
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered March 8, 1991, convicting defendant, after jury trial, of robbery in the first degree, and sentencing him to a term of 3 to 9 years, unanimously affirmed.

We agree with the hearing court that the lineup utilized in this case was not unduly suggestive and constituted a fairly representative panel (see, People v Sease, 155 AD2d 391, lv denied 75 NY2d 818).

The prosecutor’s summation remarks claimed by defendant to constitute error were either promptly stricken by the trial court and presumably not considered by the jury (People v Davis, 58 NY2d 1102), or constituted fair comment on the evidence (People v Galloway, 54 NY2d 396).

In view of the strength of the People’s evidence at trial, and the trial court’s proper instructions regarding the People’s burden of proof, we decline to invoke this Court’s discretionary power to review in the interest of justice the trial court’s inadvertent omission of a specific final jury charge on the presumption of innocence (People v Creech, 101 AD2d 753; cf., People v Guzman, 164 AD2d 828).

We have considered defendant’s remaining claims and find them to be without merit. Concur — Sullivan, J. P., Milonas, Ellerin and Wallach, JJ.