Opinion
June 26, 1990
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
The trial court properly refused defendant's request to charge the affirmative defense to felony murder. The defense failed to demonstrate that there was a reasonable view of the evidence that would have warranted a finding that defendant did not "solicit, request, command, importune, cause or aid" the homicidal act, or that defendant had no reasonable ground to believe that codefendant intended to engage in conduct likely to result in death or serious physical injury (Penal Law § 125.25 [a]; People v. Moye, 66 N.Y.2d 887, 889; People v. Watts, 57 N.Y.2d 299, 301). Also devoid of merit is defendant's argument that the evidence of his and codefendant's prior commission of "punch robberies", using an identical modus operandi, was improperly admitted. The probative value of such evidence, establishing their shared intent to rob and cause the death of the decedent, outweighed its potential for prejudice, and was not admitted for the sole purpose of demonstrating defendant's criminal propensities (People v. Alvino, 71 N.Y.2d 233, 241; People v Allweiss, 48 N.Y.2d 40, 47; People v. Molineux, 168 N.Y. 264, 293). Finally, defendant's challenge to the court's charge on his failure to testify is unpreserved as a matter of law and does not warrant review in the interest of justice (CPL 470.05; People v. Autry, 75 N.Y.2d 836, 839; People v. Diggs, 151 A.D.2d 359, 361).
Concur — Kupferman, J.P., Ellerin, Wallach and Smith, JJ.