| People v Porter |
| 2017 NY Slip Op 06297 [153 AD3d 857] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Curtis A. Porter, Appellant. |
Lynn W. L. Fahey, New York, NY (Rebecca J. Gannon of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Eric C. Washer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis,J.), rendered May 4, 2015, convicting him of attempted robbery in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of attempted robbery in the third degree for attempting toforcibly steal the complainant's cell phone. The complainant testified that the defendantapproached him on a street late at night and asked him for a cigarette, and then a lighter. Thecomplainant told the defendant that he had neither item, and the defendant then asked thecomplainant if he could borrow his cell phone, because his own cell phone had died. Thecomplainant testified that after he responded that his own cell phone had died, the defendantgrabbed his shoulder and threatened him. On appeal, the defendant contends that the SupremeCourt improperly admitted evidence that when the defendant was arrested, he was in possessionof multiple cell phones and cell phone chargers. Contrary to the defendant's contention, theevidence was properly admitted to show that the defendant's intent was to rob the complainant(see People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Lockhart, 12 AD3d 842, 844 [2004]; People vCooper, 238 AD2d 194, 195 [1997]). Moreover, the court providently exercised itsdiscretion in determining that the probative value of the evidence outweighed the risk of undueprejudice to the defendant (see People v Alvino, 71 NY2d at 241-242; People v Harris, 133 AD3d 880,881 [2015]).
The defendant failed to preserve for appellate review his contention that he was deprived of afair trial by an improper remark made by the Supreme Court to the prospective jurors during voirdire (see CPL 470.05 [2]; Peoplev Sutton, 151 AD3d 763 [2017]; People v Mason, 132 AD3d 777, 779 [2015]; People v Cunningham, 119 AD3d601, 601 [2014]). Contrary to the defendant's contention, the court's remark did notconstitute a mode of proceedings error exempting him from the rules of preservation (see People v Brown, 7 NY3d 880,881 [2006]; People v Sutton, 151AD3d 763 [2017]; People v Mason, 132 AD3d at 779; People vCunningham, 119 AD3d at 601-602). In any event, the court's remark, while inappropriate,does not warrant reversal (see People vSutton, 151 AD3d 763 [2017]; People v Mason, 132 AD3d at 779; People v Bailey, 66 AD3d 491,491 [2009]). Leventhal, J.P., LaSalle, Brathwaite Nelson and Christopher, JJ., concur.