| People v Edwards |
| 2007 NY Slip Op 07005 [43 AD3d 1175] |
| September 25, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AliEdwards, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Bellantoni, J.), rendered August 10, 2005, convicting him of attempted robbery in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,without a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
The County Court properly admitted into evidence a knife and ski mask recovered from thedefendant's person at the scene of the attempted robbery. Contrary to the defendant's contention,this evidence was relevant and therefore admissible unless its probative value was substantiallyoutweighed by the potential for prejudice (see People v Mateo, 2 NY3d 383, 424-425[2004], cert denied 542 US 946 [2004]; People v Wilder, 93 NY2d 352, 356-357[1999]; People v Scarola, 71 NY2d 769, 777 [1988]). Contrary to the defendant'scontention, the County Court properly exercised its discretion in concluding that the potential forprejudice did not substantially outweigh the probative value of the evidence (see People v Ziminski, 34 AD3d507 [2006]).
The defendant's contention that certain comments made by the People during summationdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05 [2];People v Gray, 86 NY2d 10 [1995]). In any event, the contention is without merit.Viewed in the context [*2]of the entire summation and trial, thechallenged remarks were fair response to the defendant's summation, fair comment on theevidence, nonprejudicial in light of the court's curative instructions, or harmless in light of theoverwhelming evidence of the defendant's guilt (see People v Baston, 40 AD3d 775 [2007]).
The defendant's challenge to the legal sufficiency of the evidence is also unpreserved forappellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). Inany event, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond areasonable doubt that the defendant displayed what appeared to be a firearm during the course ofthe robbery (see People v Micolo,30 AD3d 615, 616 [2006]; People v Avilla, 234 AD2d 45 [1996]; People vAaron, 233 AD2d 231 [1996]; People v Wells, 221 AD2d 281 [1995]; People vGuerriero, 221 AD2d 560, 561 [1995]; People v Haney, 162 AD2d 613 [1990]).Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]; People v Lopez, 73 NY2d 214, 222 [1989]; People v Micolo, 30 AD3d 615, 616 [2006]; People vHaney, 162 AD2d at 614).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.