People v. Sims

648 N.Y.S.2d 542 | N.Y. App. Div. | 1996

—Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered April 26, 1993, convicting defendant, after jury trial, of two counts of robbery in the second degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

The evidence was legally sufficient and the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490, 495). Defendant’s contentions that the prosecution intimated during cross-examination of defendant and in remarks on summation that defendant tailored his testimony after hearing the People’s witnesses are not preserved for appellate review (CPL 470.05 [2]; People v Cunningham, 208 AD2d 461, lv denied 84 NY2d 1030) and, in any event, are without merit. The prosecutor’s inquiry on cross-examination as to whether defendant was present during the testimony of the People’s witnesses was proper to show that the inconsistencies between defendant’s post-arrest statement to the police and his trial testimony were not, as defendant testified, attributable to mistakes made during transcription and readback of the statement, but rather, to defendant’s tailoring his testimony after hearing the People’s witnesses. Thus, the challenged remarks were not "of such a character as would naturally and reasonably be interpreted by the jury as penalizing the defendant for exercising his right to testify, or to confront the People’s witnesses” (People v Wirts, 178 AD2d 165, 166, lv denied 79 NY2d 924).

Finally, we find that the imitation gun was sufficiently connected to defendant to be admitted at trial (see, People v Mirenda, 23 NY2d 439, 453-454). Concur—Sullivan, J. P., Ellerin, Ross, Williams and Andrias, JJ.