Opinion
KA 03-00774.
December 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered March 21, 2003. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the first degree and criminal possession of a weapon in the third degree.
Before: Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Smith, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Defendant failed to preserve for our review his present contentions that the evidence is legally insufficient to support the conviction of attempted robbery ( see People v. Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678; People v. Gray, 86 NY2d 10, 19) and that Supreme Court erred in failing to present to the jury the issue whether the glass bottle used by defendant in the course of the attempted robbery was a dangerous instrument ( see People v. Santiago, 265 AD2d 205, lv denied 94 NY2d 884), and we decline to exercise our power to address those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during the prosecutor's opening and closing statements and, in any event, that contention lacks merit ( see People v. Wright, 269 AD2d 831, lv denied 94 NY2d 954; People v. Robinson, 234 AD2d 1009, lv denied 89 NY2d 1015). 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,' establish that defendant received meaningful representation" ( People v. Adams, 247 AD2d 819, 820, lv denied 91 NY2d 1004, quoting People v. Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh or severe.