People v. Lappard

Appellate Division of the Supreme Court of the State of New York

May 16, 1995

Versions:215 A.D.2d 245

627 N.Y.S.2d 613

1995 N.Y. App. Div. LEXIS 5202

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered April 9, 1993, convicting defendant, after a jury trial, of robbery in the second degree and assault in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 15 years to life and 10 years to life, respectively, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), there was ample proof to support the finding that defendant’s sneakers constituted a dangerous instrument within the meaning of Penal Law § 10.00 (13) (see, People v Carter, 53 NY2d 113; People v Scipio, 169 AD2d 596, Iv denied 77 NY2d 966), and, upon an independent review of the facts, such a finding clearly was not against the weight of the evidence (People v Bleakley, 69 NY2d 490). The credibility of the eyewitness bystander, who testified that he observed defendant wearing sneakers stomp the victim on the head while he was laying on the ground covered in blood, was properly placed before the jury, and we find no reason to disturb its determination.

Defendant’s eve-of-trial application to discharge his assigned counsel was properly denied for failure to show good cause for a substitution (People v Robinson, 203 AD2d 165, Iv denied 83 NY2d 971).

Defendant’s claim that he was deprived of a fair trial by the prosecutor’s comment on summation concerning his decision not to testify is unpreserved for appellate review as a matter of law (CPL 470.05 [2]), and we decline to review it in the interest of justice. In any event, if we were to review, we would find that the comments in question were a fair response to defendant’s summation (People Carraquillo, 202 AD2d 253, 254, Iv denied 84 NY2d 823), and did not shift the burden of *246proof. Concur—Ellerin, J. P., Ross, Nardelli, Tom and Mazzarelli, JJ.