Opinion
November 14, 1988
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court prejudiced the defense by marshaling the evidence in an unbalanced manner. This claim is unpreserved for appellate review. In any event, the circumstances of this case do not warrant a reversal in the interest of justice. The court's failure to refer to the defendant's contentions did not deprive the defendant of a fair trial (People v. Culhane, 45 N.Y.2d 757, cert denied 439 U.S. 1047; People v. McCright, 107 A.D.2d 766; People v. Herbert, 100 A.D.2d 883). The trial was of brief duration. The issues presented to the jury were relatively simple, as were the facts. Moreover, the defense counsel thoroughly reviewed the evidence and explained the defense in his summation. The court's charge on identification was adequate to alert the jury to the various factors, including the complaining witness's eyesight, which it was to consider. Finally, on several occasions during the charge the court told the jury that it had no opinion whatever on the evidence.
The defendant contends that the court improperly denied his request to submit the crime of robbery in the third degree as a lesser included offense of robbery in the first degree. We disagree. On this record there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, People v Baskerville, 60 N.Y.2d 374; People v. Bynum, 125 A.D.2d 207).
We have reviewed the defendant's remaining claims and find them to be without merit. Thompson, J.P., Bracken, Brown and Sullivan, JJ., concur.