Opinion
March 27, 1990
Appeal from the Supreme Court, New York County (James Leff, J.).
On March 15, 1986 defendant and an accomplice committed an early morning armed robbery of a Greenwich Village restaurant. Three days later, defendant and an accomplice, again in the early morning, attempted to rob another restaurant.
Defendant's claim that the court failed to instruct the jury not to commingle the evidence concerning the two incidents is unpreserved, and we decline to review it. Were we to review it in the interest of justice, we would nonetheless affirm, since the court's charge and the prosecutor's summation made it clear that the evidence of each incident had to be considered separately. (See, People v Pinkney, 156 A.D.2d 182.)
Defendant's other arguments pertaining to the court's alibi charge and the prosecutor's summation were equally unpreserved for appellate review, and do not warrant a review in the interest of justice. If we were to read those issues, we would find the charge adequate and that the prosecutor's summation constituted a fair response to defense counsel's statement.
Concur — Murphy, P.J., Ross, Rosenberger, Asch and Ellerin, JJ.