People v. Lueshing

306 A.D.2d 218, 760 N.Y.S.2d 851, 2003 N.Y. App. Div. LEXIS 7464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2003
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered June 29, 2001, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of seven years, with four years postrelease supervision, unanimously affirmed.

The court properly instructed the jury that the claim of right defense does not apply to a charge of robbery (see People v Reid, 69 NY2d 469, 475-477 [1987]). Even assuming, without deciding, that such a defense may be applicable in some form to a defendant’s forcible recovery of a specific, nonfungible chattel he claims to own (see id.), that theory was inapplicable to the instant facts, where defendant forcibly stole cash.

The challenged portions of the prosecutor’s summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

The record does not establish that the court signaled to the jury its opinion as to the credibility of witnesses by way of gestures, and, in any event, the jury is presumed to have followed the court’s instruction that it had no such opinion (see People v Davis, 58 NY2d 1102 [1983]).

The court imposed reasonable limits on the cross-examination of the victim, and provided defendant ample scope in which to impeach her credibility (see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental briefs. Concur — Andrias, J.P., Sullivan, Ellerin, Williams and Lerner, JJ.