Opinion
October 23, 1990
Appeal from the Supreme Court, New York County (Allen G. Alpert, J.).
Defendant's guilt was established beyond a reasonable doubt. Defendant's threat to kill the complainant while pointing a sharpened screwdriver at him immediately after complainant rebuffed defendant's request for "change" presented the jury with evidence sufficient to establish that defendant intended to commit a robbery (People v. Bracey, 41 N.Y.2d 296, 301, rearg denied 41 N.Y.2d 1010). Furthermore, the jury's rejection of defendant's theory of the case was not against the weight of the evidence.
As no objection was raised at trial to the prosecutor's summation, defendant's present contention of misconduct on summation is unpreserved for appellate review (CPL 470.05). Were we to consider these issues in the interest of justice, we would nonetheless affirm the conviction, finding them to be without merit. Given defendant's criminal behavior and the violent nature of this attempted crime, defendant's sentence was not excessive.
Concur — Sullivan, J.P., Ross, Rosenberger, Kassal and Wallach, JJ.