People v. Gonzales

220 A.D.2d 230, 631 N.Y.S.2d 858, 1995 N.Y. App. Div. LEXIS 9841

Opinion

—Judgment, Supreme Court, New York County (Jay Gold, J.), rendered October 20, 1992, convicting defendant, after a nonjury trial, of robbery in the second degree and two counts of robbery in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 4 to 8 years, 31/2 to 7 years and 2 to 4 years, respectively, unanimously affirmed.

Defendant’s guilt was proven beyond a reasonable doubt by legally sufficient evidence and the verdict was not against the weight of the evidence (see, People v Guidice, 83 NY2d 630, 636). Defendant’s claims of prosecutorial misconduct are unpreserved for appellate review as a matter of law (CPL 470.05 [2]; see, People v Balls, 69 NY2d 641, 642), and we decline to review them in the interest of justice. If we were to review them, we would find that the prosecutor did not "overcharge” defendant and that defendant did not have a right to plead to a lesser included offense in full satisfaction of the indictment (see, People v Esajerre, 35 NY2d 463, 466-467). As defendant was sentenced to the minimum term allowable for robbery in the second degree, the victim of which was an 81-year-old woman, his argument that he is being punished for going to trial is wholly without merit. Concur—Murphy, P. J., Ellerin, Kupferman, Asch and Mazzarelli, JJ.