Opinion
October 18, 2001.
Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered March 2, 1998, convicting defendant, after a jury trial, of attempted murder in the second degree, robbery in the first degree (two counts) and robbery in the second degree, and sentencing him to a term of 8 to 25 years consecutive to concurrent terms of 8 to 25 years, 8 to 25 years and 5 to 15 years, respectively, unanimously affirmed.
Karen Swiger, for respondent.
Laura Rossi-Ortiz, for defendant-appellant.
Before: Wallach, J.P., Rubin, Buckley, Friedman, Marlow, JJ.
Defendant's challenge to the sufficiency of the evidence supporting the robbery convictions is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. We find that the evidence permitted the jury to reasonably infer that defendant intended to deprive the victim of his jacket. This argument is similar to the argument previously rejected by this Court on a codefendant's appeal (People v. Franco, 270 A.D.2d 160, lv denied 95 N.Y.2d 852). There is no reason to reach a different result here.
The record establishes that the court did not place any limitations on defendant's summation arguments. At no time during the pre-charge conference, or during defendant's summation itself, did the court prohibit defendant from making arguments about the lack of evidence, and defendant in fact made such arguments. The court's brief preview, at the pre-charge conference, of that portion of its reasonable doubt charge dealing with the lack of particular kinds of evidence, did not inhibit defendant's summation, and the charge ultimately delivered was balanced and appropriate (see, People v. Jiovani, 258 A.D.2d 277, lv denied 93 N.Y.2d 900).
The court properly exercised its discretion in receiving testimony that, while incarcerated on the instant charges, defendant made admissions to a fellow inmate that he was arrested for the instant crime. "The evidence of defendant's incarceration had to do with his arrest for this crime and, thus, could not carry the connotation defendant now ascribes to it" (People v. Treat, 167 A.D.2d 110, 112, lv denied 77 N.Y.2d 844).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.