Opinion
2040
October 30, 2003.
Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered April 26, 2002, convicting defendant, after a jury trial, of attempted robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 9 years and 7 years, respectively, unanimously affirmed.
Beth Fisch Cohen, for respondent.
Claudia S. Trupp, for defendant-appellant.
Before: Tom, J.P., Andrias, Saxe, Williams, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification (see People v. Bleakley, 69 N.Y.2d 490). The victim made a reliable identification, and there was also evidence from which inferences as to defendant's consciousness of guilt could be drawn. The element of physical injury was established by the victim's testimony that he suffered painful swelling and bruising for three days, requiring treatment by ice packs, as a result of being struck in the head with a pistol (see People v. Guidice, 83 N.Y.2d 630, 636;People v. Bravo, 295 A.D.2d 213, lv denied 99 N.Y.2d 556).
Defendant failed to preserve his argument that, since he had withdrawn or disavowed the notice, it was error for the court to admit his false notice of alibi as an informal judicial admission. Defendant never made this argument before the trial court, but argued only that his alibi was not inconsistent with his position at trial (see People v. Graves, 85 N.Y.2d 1024, 1026-1027). We decline to review this claim in the interest of justice. Were we to review this claim, we would find that the court properly admitted this evidence (see People v. Ficarrota, 91 N.Y.2d 244, 249-250; People v. Rivera, 45 N.Y.2d 989; People v. White, 228 A.D.2d 209, 210, lv denied 88 N.Y.2d 1072). Unlike the situation in People v. Burgos-Santos ( 98 N.Y.2d 226, 233-235), defendant first attempted to disavow the alibi notice late in the trial. In any event, were we to find any error in this regard, we would find it to be harmless.
By entering into a stipulation to provide the deliberating jury with certain information that the court had precluded the People from introducing at trial, defendant failed to preserve his present objection to the submission of this evidence after deliberations had begun (see People v. Sterling, 221 A.D.2d 235, lv denied 88 N.Y.2d 854). Contrary to defendant's contention, he was not forced to enter into this stipulation. We decline to review this claim in the interest of justice. Were we to review this claim, we would find that the court properly sought to respond meaningfully to a note from the jury and to correct a misimpression created by defendant's summation (see People v. Roseman, 78 A.D.2d 878, 880, lv denied 53 N.Y.2d 711). The stipulated information submitted to the jury was simple, uncontested and not prejudicial, while correcting defendant's misleading arguments (see People v. Whipple, 97 N.Y.2d 1, 8).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.