| N.Y. App. Div. | Oct 17, 1972
Judgment, Supreme Court, New York County, entered on January 26, 1971, convicting the defendant, after trial, of robbery in the first degree, attempted assault in the second degree, petit larceny and possession of a weapon as a felony, affirmed. As is indicated in the dissenting opinion, the evidence of the defendant’s guilt is overwhelming. Seldom has this court examined a record where a defendant’s guilt is so clearly demonstrated. No error is found in the court’s charge to the jury. Nor was there any request by the defendant for any further instructions to the jury. Hence, the defendant’s contention that the court erred in failing to submit lesser included offenses to the jury is untenable, as the rule is well established that any alleged error of the court in this connection is waived by the defendant unless objection is made thereto or request made therefor. (People v. Jordan, 125 A.D. 522" court="N.Y. App. Div." date_filed="1908-04-10" href="https://app.midpage.ai/document/people-v-jordan-5206591?utm_source=webapp" opinion_id="5206591">125 App. Div. 522; People v. Mussenden, 308 N.Y. 558" court="NY" date_filed="1955-06-02" href="https://app.midpage.ai/document/people-v-mussenden-5483615?utm_source=webapp" opinion_id="5483615">308 N. Y. 558.) In the latter case (p. 566) writing on this same subject, the court said: “We need not, though, concern ourselves with that possibility, since no request was made to submit that crime to the jury.” It is further noted that, while it is not applicable to the case at bar because it was not in existence at the time of the trial, CPL 300.50 (subds. 1, 2) in effect, codify the rules as they existed at that time. Under the circumstances disclosed, the fact that the defendant chose to refuse the assistance of counsel is irrelevant. We cannot apply one set of trial rules in cases where defendant is represented by counsel and different rules where defendant rejects counsel and chooses to follow his own strategy. Conceivably, cases may arise where the failure to have counsel may have contributed to a substantial failure of justice and, in such cases, courts have not hesitated to order a new trial. However, that is not the case at bar where the guilt of this defendant is so clearly demonstrated. Concur — Markewich, J. P., McNally, Steuer and Capozzoli, JJ.; Murphy, J., dissents in part in the following memorandum: After a jury trial, defendant was convicted of robbery in the first degree, attempted assault in the second degree, petit larceny and possession of a weapon as a felony in connection with his activities in a Manhattan liquor store on Christmas Eve, 1969. During the course of the evening’s events defendant’s wrist was grabbed by the store owner while it was literally in the till, and he was thereafter shot in the stomach, hit over the head with a bottle, caused to fall through a glass door and then apprehended following a brief chase. Accordingly, we are not here concerned with any question of a mistaken identification, or with the legal sufficiency of the evidence to establish guilt. Three customers, all eyewitnesses, testified to what transpired; as did the store-owner and his employee. However, only the latter two witnesses claimed that any money ($200) had been taken from the register before the altercation began; with the other witnesses unable to corroborate the fact. Significantly, although defendant was severly injured and immediately apprehended, no money was found in his possession (and only $20 was found in the immediate vicinity of the