Opinion
December 11, 1990
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
Defendant argues that the trial court erred in denying his application that a renunciation charge be submitted to the jury as an affirmative defense. The evidence in this case makes clear that whatever arguable abandonment occurred in defendant's criminal purpose, it did not manifest voluntary and complete renunciation. (See, Penal Law § 40.10.) Rather, the evidence indicates that circumstances existed which rendered the accomplishment of defendant's criminal purpose difficult, to the extent that the victim persuaded him that she did not have money, or else that defendant postponed his criminal conduct only to transfer his criminal effort to another victim. (Penal Law § 40.10.) We also note that the second potential victim, as well as other people, arrived at the bank shortly after the incident, from which it may be inferred that the defendant withdrew from the attempted robbery out of fear of detection (see, e.g., People v. Gilmore, 134 A.D.2d 653, lv. denied 72 N.Y.2d 859). Defendant has failed to carry his burden of proving the affirmative defense by a preponderance of the evidence (People v. Butts, 72 N.Y.2d 746, 749, n 1) and no reasonable view of the evidence supports a finding of the affirmative defense of renunciation, relieving the court of any obligation to submit the question to the jury (People v. Watts, 57 N.Y.2d 299, 301).
Finally, defendant has failed to preserve any challenge to the prosecutor's summation by objection, as a matter of law.
Concur — Murphy, P.J., Sullivan, Carro, Milonas and Rubin, JJ.