Opinion
October 5, 1995
Appeal from the Supreme Court, New York County (Jay Gold, J.).
Defendant's guilt was proven beyond a reasonable doubt by legally sufficient evidence and the verdict was not against the weight of the evidence ( see, People v. Guidice, 83 N.Y.2d 630, 636). Defendant's claims of prosecutorial misconduct are unpreserved for appellate review as a matter of law (CPL 470.05; see, People v. Balls, 69 N.Y.2d 641, 642), and we decline to review them in the interest of justice. If we were to review them, we would find that the prosecutor did not "overcharge" defendant and that defendant did not have a right to plead to a lesser included offense in full satisfaction of the indictment ( see, People v. Esajerre, 35 N.Y.2d 463, 466-467). As defendant was sentenced to the minimum term allowable for robbery in the second degree, the victim of which was an 81-year-old woman, his argument that he is being punished for going to trial is wholly without merit.
Concur — Murphy, P.J., Ellerin, Kupferman, Asch and Mazzarelli, JJ.