Opinion
October 15, 1992
Appeal from the Supreme Court, New York County (Franklin R. Weissberg, J.).
Based upon the evidence presented, and particularly in light of eyewitness observations and the placement of the wounds, the jury could readily conclude that defendant intended to rob the victim (see, People v Bracey, 41 N.Y.2d 296, 299-300, 302; see also, People v Rivera, 159 A.D.2d 255, 256, lv denied 76 N.Y.2d 795). Such intent is not necessarily precluded by the absence of proof of a threatening demand compelling one to deliver up property (see, People v Smith, 79 N.Y.2d 309; compare, People v Morales, 130 A.D.2d 366). The People's unobjected-to opening and summation were not attempts to taint the trial with a prejudicial infusion of "class bias". Although aspersions against racial groups are offensive and not to be tolerated (People v Rivera, 136 A.D.2d 520, 521, affd 73 N.Y.2d 941), neither race nor ethnicity was a factor here. The prosecution argument referring to an elderly victim and his appearance of prosperity was, rather, both an articulation of motive and a rebuttal of the defense.
Finally, defendant's challenge to the court's charge on the conflicting inferences to be drawn from the evidence is unpreserved as a matter of law (CPL 470.05). In any event the court's single remark did not diminish the prosecution's burden of proof, which was adequately conveyed by the court's charge as a whole (People v Vasquez, 161 A.D.2d 540, 541).
Concur — Carro, J.P., Milonas, Rosenberger and Asch, JJ.