Opinion
16258 4119/12.
12-01-2015
The PEOPLE of the State of New York, Respondent, v. Edward GREEN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 14, 2013, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of seven years, unanimously affirmed.
The court properly declined to charge petit larceny as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he stole property without using force. Defendant either participated in a robbery or committed no crime; there was no evidence to support a theory that he somehow “opportunistically” took the victim's property without being part of the robbery (see e.g. People v. Flores, 28 A.D.3d 380, 812 N.Y.S.2d 534 1st Dept.2006, lv. denied 7 N.Y.3d 755, 819 N.Y.S.2d 881, 853 N.E.2d 252 2006 ).
Defendant's challenges to the prosecutor's summation are entirely unpreserved, notwithstanding his postsummations mistrial motion (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 2006; People v. LaValle, 3 N.Y.3d 88, 116, 783 N.Y.S.2d 485, 817 N.E.2d 341 2004 ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The remarks at issue generally constituted permissible responses to defense counsel's summation arguments, and they did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 1st Dept.1997, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 1998; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 1st Dept.1992, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 1993 ).