People v. Green

235 A.D.2d 309, 652 N.Y.S.2d 955, 1997 N.Y. App. Div. LEXIS 500

Opinion

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered October 18, 1994, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 8 to 16 years and 6 to 12 years, respectively, unanimously affirmed.

Upon the existing record, which defendant has not amplified by way of a post-conviction motion, counsel’s performance did not fall outside the scope of professional competence, and defendant has shown no prejudice resulting from counsel’s actions (see, People v Alexander, 162 AD2d 164).

Defendant cannot rely on codefendant’s objections to the prosecutor’s summation (see, People v Buckley, 75 NY2d 843, 846), and defendant’s request for a mistrial, based upon closing arguments not attacked on appeal, did not preserve the claim of prosecutorial misconduct (see, People v Johnson, 210 AD2d 174, Iv denied 85 NY2d 939). Were we to review this claim in the interest of justice, we would find, as we did in the case of the codefendant, that in light of the overwhelming evidence of guilt, the prosecutor’s summation was not so egregious as to deprive defendant of a fair trial (see, People v D’Alessandro, 184 AD2d 114, lv denied 81 NY2d 884).

Defendant’s claims pursuant to Batson v Kentucky (476 US 79), similar to those we rejected on the codefendant’s appeal (People v Braxton, 234 AD2d 50), are without merit. Concur— Murphy, P. J., Rosenberger, Ellerin and Wallach, JJ.