People v. Davis

108 A.D.2d 924, 485 N.Y.S.2d 814, 1985 N.Y. App. Div. LEXIS 43258

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Parlo, J.), rendered February 23,1983, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The remarks made by the prosecutor in his summation constituted fair comment on the summations of the defense attorney and the codefendant’s attorney in which they attempted to convince the jury that the complainant was a willing participant in a staged robbery (cf. People v Garcia, 51 AD2d 329). Also, the court’s timely intervention and subsequent clarification of defendant’s constitutional rights ensured that the jury did not draw any negative inferences from his failure to testify.

Similarly, the court’s instructions negated any prejudice which might have arisen from the testimony regarding the circumstances of defendant’s arrest (People v Santiago, 52 NY2d 865; People v Patterson, 83 AD2d 691).

The court did not err in refusing to charge grand larceny in the third degree as a lesser included offense, as there is no reasonable view of the evidence which would support a finding that defendant committed grand larceny in the third degree but did not commit robbery (People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427).

The other issues raised by defendant on this appeal have not been preserved for appellate review and we decline to reach them in the interest of justice. Titone, J. P., O’Connor, Rubin and Lawrence, JJ., concur.