Opinion
June 30, 1986
Appeal from the Supreme Court, Kings County (Fuchs, J.).
Judgment, as amended, reversed insofar as appealed from by the People, on the law, motion to vacate the sentence imposed on July 28, 1982, denied, and sentence imposed on July 28, 1982, reinstated in its entirety. Judgment, as amended, affirmed insofar as appealed from by the defendant.
A review of the record shows that the defendant received meaningful representation from his trial counsel (see, People v Baldi, 54 N.Y.2d 137), who, despite the overwhelming evidence against the defendant, produced an alibi witness, adequately cross-examined the People's witnesses and raised appropriate objections throughout the trial. With respect to defense counsel's failure to cross-examine the complaining witnesses extensively in order to elicit possible weaknesses in their testimony, defense counsel, at the People's request, explained in camera the purpose of limiting the areas of inquiry with respect to these witnesses. It is well settled that mere unsuccessful trial tactics, when viewed in hindsight, will not render the legal representation of the defendant constitutionally infirm (see, People v. Lane, 60 N.Y.2d 748; People v. Baldi, supra).
The trial court properly denied the defendant's request to charge grand larceny, petit larceny and attempted grand larceny as lesser included offenses of the first degree robbery and attempted robbery counts since there was no reasonable view of the evidence to support a finding that the defendant stole or attempted to steal property from the complainants without the use of force (see, People v. Glover, 57 N.Y.2d 61). Nor was there a rational basis by which the jury could reject the testimony of the People's witnesses regarding the display of a revolver yet accept that the defendant committed the theft (see, People v Blim, 63 N.Y.2d 718).
On a related point, it cannot be said that the jury's verdict was inconsistent or repugnant. First, since the defendant did not argue this issue before the jury was discharged, he failed to preserve the same for review (see, People v. Stahl, 53 N.Y.2d 1048; People v. Howard, 107 A.D.2d 712). In any event, the jury could have found that the defendant committed robbery and attempted robbery in the first degree by displaying what appeared to be a revolver without also finding that he was guilty of criminal possession of a weapon in the second degree, since the latter offense has additional elements not present in the former (see, People v. Tucker, 55 N.Y.2d 1, rearg denied 55 N.Y.2d 1039).
We have considered the defendant's remaining contentions and find them to be either without merit or unpreserved for review.
Criminal Term did not have the power to modify a legally imposed sentence which it had rendered three months previously, even though the defendant's sentence had concededly not commenced (see, Penal Law § 70.30), since the term of the court in which the original judgment was pronounced had already ended (see, Matter of Cedar, 240 App. Div. 182, affd 265 N.Y. 620; accord, People v. Sanacory, 248 App. Div. 631, affd 272 N.Y. 573, cert denied 299 U.S. 600). Nor have any special circumstances been shown which would warrant downward modification of the sentence (see, People v. Ozarowski, 87 Misc.2d 607; cf. People v. Rutkowsky, 101 Misc.2d 740). Therefore, Criminal Term erred in granting the defendant's motion to vacate the sentence imposed on July 28, 1982. Gibbons, J.P., Bracken, Weinstein and Niehoff, JJ., concur.