Opinion
July 6, 1993
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment is affirmed.
The defendant contends that the evidence adduced at trial was insufficient to prove that he intended to forcibly steal a livery cab and to establish his identity as the robber. Viewing the evidence in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish that the defendant was guilty of robbery in the first degree (see, People v. Moucha, 127 A.D.2d 703, 704), and that he was, in fact, the robber (see, People v. Caballero, 177 A.D.2d 496; People v. Rios, 180 A.D.2d 696, 697). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant also contends that the Supreme Court erred in declining to submit to the jury the lesser included offense of robbery in the third degree. We find that there was no reasonable view of the evidence which would support a finding that the defendant committed robbery in the third degree rather than robbery in the first degree, and therefore, the trial court's refusal to charge robbery in the third degree was not error (see, CPL 300.50; People v. White, 121 A.D.2d 762, 763; People v. Flood, 159 A.D.2d 217). Additionally, we find that the trial court did not improvidently exercise its discretion in refusing to charge the non-inclusory concurrent count of unauthorized use of a vehicle in the third degree (see, CPL 300.40 [a]).
Insofar as the defendant complains of comments made by the prosecutor during summation, we find that they were fair response to defense counsel's summation (see, People v. Colon, 122 A.D.2d 151), and any error was harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230; People v. Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837).
The defendant's remaining contentions are without merit. Mangano, P.J., Rosenblatt, O'Brien and Copertino, JJ., concur.