People v. Smith

Nov 28, 1995
Versions:221 A.D.2d 251
634 N.Y.S.2d 63
1995 N.Y. App. Div. LEXIS 12144

—Judgment, *252Supreme Court, New York County (Antonio Brandveen, J.), rendered January 3, 1994, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

Defendant’s claim that evidence of uncharged crimes was improperly admitted is unpreserved for appellate review as a matter of law, defendant having failed to object to the testimony in question or otherwise make his position known after the court made no ruling on the prosecution’s motion for a prospective ruling with respect to some of such testimony (CPL 470.05 [2]; cf., People v Fleming, 70 NY2d 947), and we decline to review it in the interest of justice. If we were to review it, we would find that the evidence that defendant and three companions were observed by police watching and sometimes following passersby, while suspicious, was not proof of a crime (see, People v Flores, 210 AD2d 1, Iv denied 84 NY2d 1031). Also unpreserved is defendant’s argument that the uncharged crimes evidence was heightened by the prosecutor’s summation comment that defendant and his companions "were stalking people, they were walking around and looking for easy targets, somebody to rob”, and we decline to review it in the interest of justice. If we were to review it, we would find that the comment, in context, was fair response to the defense summation that challenged the evidence of stalking as suspect on the basis of the argument that the police did nothing to stop it as they believed no crime had as yet been committed.

The victim’s testimony concerning the injuries he sustained during the attack was properly elicited to establish the element of force (see, People v Graham, 182 AD2d 521). There was no Rosario violation since the undisclosed prisoner property voucher form did not relate to any testimony elicited by the People (see, People v Melendez, 178 AD2d 366, 367, lv denied 79 NY2d 950). Concur—Murphy, P. J., Sullivan, Ross, Williams and Tom, JJ.