Opinion
January 24, 1995
Appeal from the Supreme Court, New York County (Charles Tejada, J.).
Defendant failed to preserve for appellate review his claim that the court provided an erroneous supplementary instruction, i.e., that "motivation is not an issue", and we decline to review it in the interest of justice. Were we to review the claim, we would find it to be without merit. While the absence of motive evidence may tend to establish that a defendant lacked the requisite intent, defendant admitted that he intended to take the victim's bicycle but proffered a mitigating reason for his unequivocal act, and thus the commission of an intentional act was not in issue (see, People v. Luciano, 46 N.Y.2d 767, 768; compare, People v. Dinser, 192 N.Y. 80).
Defendant's claim of prosecutorial misconduct during summation is also unpreserved. In any event, the comments by the People were a proper response to attacks on their witnesses (see, People v. Marks, 6 N.Y.2d 67, 78, cert denied 362 U.S. 912).
Concur — Sullivan, J.P., Wallach, Kupferman and Ross, JJ.