People v. Morris

159 A.D.2d 388

Opinion

Judgment, Supreme Court, New York County (William J. Davis, J.), rendered November 14, 1986, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him as a predicate felon to an indeterminate term of imprisonment of from 3 Vi to 7 years, unanimously affirmed.

There is no dispute that at midnight on April 1, 1986 defendant and another person were beating Daniel Drum with their fists on the sidewalk. Defendant testified that he punched Drum because Drum had bumped into defendant, breaking his last bottle of wine. Drum testified that he was listening to a tape on his "Walkman” when he was attacked for no reason. Three police officers on antirobbery patrol happened on the scene. Officer Pagan testified that when he identified himself as a police officer, defendant exclaimed, "Oh, [expletive]”, and flung Drum’s Walkman, which defendant had been holding in his right hand, into the air. The other two officers saw the Walkman fly out of the area of the struggle after Pagan yelled "Police!”

We find no merit to defendant’s largely unpreserved claims that during summation the prosecutor unfairly characterized his testimony as lies. Defense counsel repeatedly suggested that the officers were not telling the truth; and personally vouched for the defendant’s credibility by stating to the jury, "I’d just like to tell you what I think really happened”, and, after arguing that there was no robbery, concluding "that is what I think happened ladies and gentlemen.” Thus, the prosecutor’s arguments were to a large extent responsive to the arguments made by defense counsel on summation (People v Bailey, 155 AD2d 262; People v Moran, 154 AD2d 322). Moreover, if the prosecutor’s comments were error, we would find them harmless in view of the overwhelming evidence of guilt (People v Crimmins, 36 NY2d 230). Concur—Murphy, P. J., Sullivan, Carro, Wallach and Rubin, JJ.