Opinion
January 11, 1994
Appeal from the Supreme Court, New York County, Joan Sudolnik, J., Renee White, J., Alfred Kleiman, J.
Contrary to defendant's contention, sufficient evidence was adduced at trial to enable the jury to reasonably conclude that defendant threatened the immediate use of physical force in attempting to rob a medallion cab driver on the same night that he later forcibly took money from another cab driver by displaying what appeared to be a firearm. The prosecutor's asserted mischaracterization of the evidence is unpreserved for review and we decline to review it in the interest of justice (People v. Flores, 191 A.D.2d 306, 307, lv denied 81 N.Y.2d 1013).
The motion court properly denied defendant's motion for a pre-trial hearing to determine the legality of a police seizure of physical evidence since he failed to set forth sufficient factual allegations with respect to the police conduct being challenged (CPL 710.60 [b]; People v. Kitchen, 162 A.D.2d 178, lv denied 76 N.Y.2d 941).
Finally, we find without merit defendant's argument that the trial court abused its discretion in not permitting defense counsel a continuance and not reopening the defense case after jury deliberations had commenced in order to allow the appearance of a witness who had been subpoenaed the day before since the potential testimony was speculative, at best. (People v Villegas, 190 A.D.2d 593, lv denied 81 N.Y.2d 978; People v Rodriguez, 188 A.D.2d 494, lv denied 81 N.Y.2d 892.)
Concur — Murphy, P.J., Sullivan, Rosenberger and Ross, JJ.