Opinion
No. KA 07-01743.
April 25, 2008.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered July 12, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and robbery in the second degree.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15) and robbery in the second degree (§ 160.10 [1]). Defendant failed to preserve for our review his contention that he was denied a fair trial based on prosecutorial misconduct ( see People v Jackson, 46 AD3d 1408), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Defendant also failed to preserve for our review his contentions that County Court erred in allowing the People to present testimony that suggested defendant's involvement in uncharged crimes ( see People v Smith, 309 AD2d 1081), as well as testimony that bolstered the victim's identification of defendant ( see People v Vargas, 155 AD2d 565, 566, lv denied 75 NY2d 819). In addition, defendant failed to preserve for our review his contentions that the court erred in charging the jury ( see People v Thomas, 305 AD2d 1099, lv denied 100 NY2d 600), and in failing to respond to notes from the jury during its deliberations ( see generally People v Crisp, 50 AD3d 1550). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Contrary to defendant's further contention, the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, demonstrate that defendant received meaningful representation ( see People v Baldi, 54 NY2d 137, 147). We have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.