People v. McDowell

Appellate Division of the Supreme Court of New York

People v. McDowell

188 A.D.2d 380, 591 N.Y.S.2d 387, 1992 N.Y. App. Div. LEXIS 14285

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1992

StatusPublished

This text of 188 A.D.2d 380 (People v. McDowell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McDowell, 188 A.D.2d 380, 591 N.Y.S.2d 387, 1992 N.Y. App. Div. LEXIS 14285 (N.Y. Ct. App. 1992).

Pincite

Opinion

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered January 19, 1990, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 3 to 6 years, and IV2 to 3 years, respectively, unanimously affirmed.

Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), we find that the evidence was sufficient as a matter of law to support a finding, beyond a reasonable doubt, that defendant shared with his cohorts an intent to steal property from the victim as well as the intent to assault him. Nor is the verdict against the weight of the evidence, which consisted primarily of the victim’s testimony that defendant hit him with a crutch while another member of defendant’s group took his wallet and that defendant struck him again when he tried to retrieve his wallet.

Defendant’s argument that he was deprived of a fair trial by a comment by the prosecutor during summation that shifted the burden of proof is unpreserved for review as a matter of law (CPL 470.05 [2]), and we decline to review it. If we were to review the issue in the interest of justice, we would find that any prejudice was avoided by trial court’s prompt curative instruction, given sua sponte and without objection, reminding the jury that the burden of proof never shifts from the People. Concur — Murphy, P. J., Carro, Rosenberger, Asch and Kassal, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered January 19, 1990, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 3 to 6 years, and IV2 to 3 years, respectively, unanimously affirmed.

Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), we find that the evidence was sufficient as a matter of law to support a finding, beyond a reasonable doubt, that defendant shared with his cohorts an intent to steal property from the victim as well as the intent to assault him. Nor is the verdict against the weight of the evidence, which consisted primarily of the victim’s testimony that defendant hit him with a crutch while another member of defendant’s group took his wallet and that defendant struck him again when he tried to retrieve his wallet.

Defendant’s argument that he was deprived of a fair trial by a comment by the prosecutor during summation that shifted the burden of proof is unpreserved for review as a matter of law (CPL 470.05 [2]), and we decline to review it. If we were to review the issue in the interest of justice, we would find that any prejudice was avoided by trial court’s prompt curative instruction, given sua sponte and without objection, reminding the jury that the burden of proof never shifts from the People. Concur — Murphy, P. J., Carro, Rosenberger, Asch and Kassal, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

188 A.D.2d 380, 591 N.Y.S.2d 387, 1992 N.Y. App. Div. LEXIS 14285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcdowell-nyappdiv-1992.

Opinion

Related

Cite This Page — Counsel Stack