| People v Green |
| 2015 NY Slip Op 08788 [134 AD3d 418] |
| December 1, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Edward Green, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedJune 14, 2013, convicting defendant, after a jury trial, of two counts of robbery in thesecond degree, and sentencing him, as a second felony offender, to concurrent terms ofseven years, unanimously affirmed.
The court properly declined to charge petit larceny as a lesser included offense, sincethere was no reasonable view of the evidence, viewed most favorably to defendant, thathe stole property without using force. Defendant either participated in a robbery orcommitted no crime; there was no evidence to support a theory that he somehow"opportunistically" took the victim's property without being part of the robbery (see e.g. People v Flores, 28AD3d 380 [1st Dept 2006], lv denied 7 NY3d 755 [2006]).
Defendant's challenges to the prosecutor's summation are entirely unpreserved,notwithstanding his postsummations mistrial motion (see People v Romero, 7 NY3d 911, 912 [2006]; People v LaValle, 3 NY3d88, 116 [2004]), and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal. The remarks at issue generallyconstituted permissible responses to defense counsel's summation arguments, and theydid not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133[1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro,184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).Concur—Mazzarelli, J.P., Moskowitz, Richter and Manzanet-Daniels, JJ.