People v. Macon

159 A.D.2d 390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1990
• Status: Published

Opinion

Judgment, Supreme Court, New York County (James Leif, J.), rendered on January 14, 1987, convicting defendant, after a jury trial, of first degree robbery, first degree attempted robbery and possession of burglar tools, and judgment of the same court rendered on the same day, upon pleas of guilty, convicting defendant of second degree bail jumping and third degree burglary, and sentencing him to concurrent prison terms of 6 to 18 years, 5 to 15 years, one year, 1 to 4 years and 1 to 7 years, respectively, are unanimously affirmed.

On March 15, 1986 defendant and an accomplice committed an early morning armed robbery of a Greenwich Village restaurant. Three days later, defendant and an accomplice, again in the early morning, attempted to rob another restaurant.

Defendant’s claim that the court failed to instruct the jury not to commingle the evidence concerning the two incidents is unpreserved, and we decline to review it. Were we to review it in the interest of justice, we would nonetheless affirm, since the court’s charge and the prosecutor’s summation made it clear that the evidence of each incident had to be considered separately. (See, People v Pinkney, 156 AD2d 182.)

Defendant’s other arguments pertaining to the court’s alibi charge and the prosecutor’s summation were equally unpreserved for appellate review, and do not warrant a review in the interest of justice. If we were to read those issues, we would find the charge adequate and that the prosecutor’s summation constituted a fair response to defense counsel’s statement. Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.