| People v Ricks |
| 2008 NY Slip Op 02347 [49 AD3d 1265] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Keyontay C.Ricks, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered October 27, 2005. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree and criminal possession of stolen property in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of robbery inthe first degree (Penal Law § 160.15 [4]) and criminal possession of stolen property in thethird degree (§ 165.50), defendant contends that the evidence is legally insufficient toconvict him of robbery in the first degree as an accomplice. We reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that the jury could have reasonably inferred that defendant intended to steal propertyforcibly and that he intentionally aided the principal in his commission of the robbery(see Penal Law § 20.00; People v Mariko, 267 AD2d 113 [1999], lvdenied 94 NY2d 950 [2000]; People v Woods, 238 AD2d 900 [1997], lv denied90 NY2d 912 [1997]). We further conclude that the verdict is not against the weight of theevidence (see Bleakley, 69 NY2d at 495).
Supreme Court properly admitted in evidence the People's CPL 710.30 notice setting forthdefendant's statements to the police. Contrary to defendant's contention, that document did notbolster the prior testimony of a witness who had testified before the document was admitted inevidence (see People v Smith, 24AD3d 1253 [2005], lv denied 6 NY3d 818 [2006]; cf. People v Randle[appeal No. 2], 21 AD3d 1341 [2005], lv denied 6 NY3d 757 [2005]). Defendantfailed to preserve for our review his further contention that the court erred in refusing to suppresshis statements to the police in which he referred to the fact that he was on parole inasmuch as hefailed to seek suppression of the statements on that ground (see generally People v Rogers, 34 AD3d 504 [2006], lv denied8 NY3d 849 [2007]). We reject the contention of defendant that he was denied effectiveassistance of counsel based on defense counsel's failure to preserve that contention for our review(see People v Copeland, 43 AD3d1436 [2007]). Indeed, we conclude upon the record before us that defense counsel providedmeaningful representation (see generally People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]).[*2]
Defendant also failed to preserve for our review hiscontention that he was deprived of a fair trial based on prosecutorial misconduct duringsummation (see CPL 470.05 [2]). In any event, "the prosecutor's comments constitutedfair response to defense counsel's summation . . . and 'did not exceed the broadbounds of rhetorical comment permissible in closing argument' " (People v Anderson,274 AD2d 974, 974 [2000], lv denied 95 NY2d 863 [2000], quoting People vGalloway, 54 NY2d 396, 399 [1981]). In addition, defendant failed to preserve for ourreview his contention that the People improperly elicited the testimony of a police officerindicating that a nontestifying witness identified the principal as the individual who robbed him(see CPL 470.05 [2]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, we reject defendant's contention that the court erred in refusing to charge the lesserincluded offense of criminal possession of stolen property in the fifth degree (Penal Law §165.40). There is no reasonable view of the evidence to support a finding that defendantcommitted the lesser offense but not the greater offense of criminal possession of stolen propertyin the third degree (see generally People v Glover, 57 NY2d 61, 63 [1982]).Present—Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.