People v. Christian

215 A.D.2d 493, 640 N.Y.S.2d 757, 1995 N.Y. App. Div. LEXIS 4880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1995
• Status: Published

Opinion

Appeal by the defendant from judgment of the Supreme Court, Kings County (Beldock, J.), rendered June 7, 1993, convicting him of murder in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has not preserved for appellate review his contention that the court erred in instructing the jury on the law of attempted robbery in its charge on felony murder (see, CPL 470.05 [2]; People v Whalen, 59 NY2d 273, 280; People v Wilson, 156 AD2d 1002). In any event, the court’s charge was proper. The evidence, including the defendant’s confession, indicated that the defendant and codefendants, acting in concert, armed themselves and entered the victim’s store to rob him. When one codefendant fatally shot the storeowner, the attempted robbery escalated to murder. Accordingly, the defendant was properly convicted of murder in the second degree (see, Penal Law § 125.25 [3]; People v Diaz, 177 AD2d 500, 502).

The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit. Mangano, P. J., Sullivan, Copertino and Altman, JJ., concur.