People v. McDonald

Nov 28, 1988
Versions:144 A.D.2d 701
535 N.Y.S.2d 20
1988 N.Y. App. Div. LEXIS 12402

Appeal by the defendant from *702a judgment of the Supreme Court, Kings County (Broomer, J.), rendered August 27, 1986, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of a fair trial by the manner in which the court marshaled the evidence in its charge is not preserved for appellate review since no objection was made to the charge on that ground (see, People v West, 56 NY2d 662; People v Brensic, 119 AD2d 281, revd on other grounds 70 NY2d 9; People v Earley, 118 AD2d 868). In any event, we do not find the court’s failure to refer to the defendant’s evidence to be an error since the court need not explain all the contentions of the parties or the inconsistencies in the evidence (see, People v Saunders, 64 NY2d 665). The trial was short, the issues were simple, there were few witnesses and the defendant’s position was made clear to the jury in the defense counsel’s summation (see, e.g., People v Patterson, 121 AD2d 406, lv denied 68 NY2d 759; People v McCright, 107 AD2d 766). Furthermore, the court advised the jurors that their recollection of the evidence was controlling.

Only one of the prosecutor’s summation remarks now complained of on appeal was preserved for review by a timely objection (see, People v Nuccie, 57 NY2d 818; People v Hayden, 128 AD2d 726, lv denied 69 NY2d 950). This comment did not deprive the defendant of a fair trial in view of the overwhelming evidence of his guilt (see, People v Yaghnam, 135 AD2d 763). As to those remarks which were not preserved for review, we find that they did not deprive the defendant of a fair trial, particularly when viewed in conjunction with the defense counsel’s summation, and that a reversal in the interest of justice is not warranted. Lawrence, J. P., Spatt, Sullivan and Balletta, JJ., concur.