Opinion
1542
June 26, 2003.
Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered June 29, 2001, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 7 years, with 4 years post-release supervision, unanimously affirmed.
Deborah L. Morse, for respondent.
Gerald J. McMahon Pro Se, for defendant-appellant.
Before: Andrias, J.P., Sullivan, Ellerin, Williams, Lerner, JJ.
The court properly instructed the jury that the claim of right defense does not apply to a charge of robbery (see People v. Reid, 69 N.Y.2d 469, 475-477). Even assuming, without deciding, that such a defense may be applicable in some form to a defendant's forcible recovery of a specific, non-fungible chattel he claims to own (see id.), that theory was inapplicable to the instant facts, where defendant forcibly stole cash.
The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119,lv denied 81 N.Y.2d 884).
The record does not establish that the court signaled to the jury its opinion as to the credibility of witnesses by way of gestures, and, in any event, the jury is presumed to have followed the court's instruction that it had no such opinion (see People v. Davis, 58 N.Y.2d 1102).
The court imposed reasonable limits on the cross-examination of the victim, and provided defendant ample scope in which to impeach her credibility (see Delaware v. Van Arsdall, 475 U.S. 673, 678-679).
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental briefs.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.