Opinion
October 1, 1999
Appeal from Judgment of Ontario County Court, Harvey, J. — Robbery, 1st Degree.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of robbery in the first degree (Penal Law § 160.15) and criminal possession of a weapon in the third degree (Penal Law § 265.02). County Court properly limited defendant's cross-examination of complainant regarding his racial bias. The proof sought to be introduced was inadmissible because it concerned the alleged general ill will of complainant and not his specific hostility toward defendant (see, People v. Thomas, 46 N.Y.2d 100, 105, appeal dismissed 444 U.S. 891). Thus, under the circumstances of this case, the risk of confusing the jury outweighed the probative value of the proof (see, People v. Thomas, supra, at 105-106; People v. Washpun, 134 A.D.2d 858, 859, lv denied 70 N.Y.2d 1012).
We reject the contention of defendant that he was denied effective assistance of counsel (see, People v. Satterfield, 66 N.Y.2d 796, 798-799). Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation. Most of the alleged instances of prosecutorial misconduct have not been preserved for our review (see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Those instances that are preserved for our review do not warrant reversal. The prosecutor's comment that defendant had a motive to lie was made in response to defense counsel's attack on the credibility of complainant (see, People v. Keogh, 188 A.D.2d 312, lv denied 81 N.Y.2d 888). Defendant further contends that the prosecutor improperly commented on defendant's failure to call a witness, a cousin of defendant's friend, who could have corroborated defendant's testimony that complainant had asked for a ride and wanted to buy drugs. The prosecutor's comment, however, was merely an effort "to persuade the jury to draw inferences that supported the People's position" and not an impermissible effort to shift the burden of proof (People v. Tankleff, 84 N.Y.2d 992, 994; see also, People v. Durden, 211 A.D.2d 568, lv denied 85 N.Y.2d 937). Additionally, although the prosecutor's derogatory references regarding the manner in which defendant dressed were improper, they were not so egregious as to deny defendant due process of law (see, People v. Hess, 234 A.D.2d 925, lv denied 90 N.Y.2d 1011).
We reject the contention of defendant that the evidence is insufficient to support the conviction of first degree robbery (Penal Law § 160.15). Viewed in the light most favorable to the People, the evidence is sufficient to establish that defendant used force to escape with stolen property (see, People v. Nelson, 233 A.D.2d 926, 927). Finally, the sentence is neither unduly harsh nor severe.
PRESENT: PINE, J. P., LAWTON, WISNER, HURLBUTT AND BALIO, JJ.