Opinion
November 28, 1989
Appeal from the Supreme Court, New York County (James Leff, J.).
In this prosecution for attempted first degree robbery arising as a result of an attack upon the complainant in the lobby of her Stuyvesant Town apartment building and subsequent pursuit and apprehension of the defendant by no less than four individuals, including three private security guards, the hearing court properly denied defendant's motion seeking to suppress the complainant's identification testimony based upon the court's determination that the pretrial lineup, as composed, was not so suggestive as to create a risk of irreparable misidentification (Manson v Brathwaite, 432 U.S. 98; United States v Reid, 517 F.2d 953, 965, n 15; People v Rodriguez, 124 A.D.2d 611, 612).
Similarly, defendant's request, for the first time after defense counsel's summation, for an alibi instruction based solely upon a discrepancy in time estimates by two of his pursuers was properly denied, since there was no evidence establishing defendant's presence other than at the scene of the crime (People v Holt, 67 N.Y.2d 819; People v O'Neill, 79 A.D.2d 429, 431).
Equally devoid of merit are defendant's largely unpreserved contentions that he was denied a fair trial by prosecutorial misconduct on summation, since the record reveals that the majority of the prosecutor's comments were responsive to defense counsel's repeated attacks upon the veracity of the People's witnesses (People v Galloway, 54 N.Y.2d 396, 399; People v Marks, 6 N.Y.2d 67).
Finally, we are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account his extensive history of violent crime, "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction", we perceive no abuse of discretion warranting a reduction in sentence (People v Farrar, 52 N.Y.2d 302, 305).
Concur — Kupferman, J.P., Ross, Asch, Kassal and Smith, JJ.