Opinion
September 22, 1992
Appeal from the Supreme Court, New York County (Allen G. Alpert, J.).
Viewing the evidence in the light most favorable to the People (People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), defendant's guilt of robbery in the third degree was proven beyond a reasonable doubt. The jury was entitled to reject the defense theory that only a fight occurred and to accept the complainant's testimony that defendant had taken his chain and keys. The token booth clerk's testimony that he did not observe defendant take property from the complainant is not inconsistent with the commission of a robbery since the token booth clerk also testified that he was unable to observe the altercation in its entirety. Concerning defendant's largely unpreserved contention that the prosecutor impermissibly suggested in summation that defendant had committed the uncharged crime of assault, we disagree that the comments in question, taken in the context of the prosecutor's entire summation, could have been so interpreted by the jury, and, in any event, the comments were directly responsive to arguments made by the defense (People v Bailey, 155 A.D.2d 262, lv denied 75 N.Y.2d 810).
Concur — Murphy, P.J., Rosenberger, Ross and Kassal, JJ.