Opinion
June 9, 1992
Appeal from the Supreme Court, New York County (James Leff, J.).
Defendant and others surrounded the complainant in the process of robbing him of his personalty. Defendant punched the complainant twice in the face, as another perpetrator instructed the complainant not to talk back.
Defendant's contention that the complainant's failure to testify on direct examination that money was taken from him renders the evidence legally insufficient to support a charge of robbery, is without merit. The theory of the People's case was that money had been taken from the complainant, which was elicited from complainant on cross-examination, and defense counsel himself conceded that the robbery had occurred (see, e.g., People v. Kirkpatrick, 32 N.Y.2d 17, 21-22, appeal dismissed 414 U.S. 948; People v. Goldstein, 120 A.D.2d 471, 473). Defendant's present claim that the complainant's statement to police was impermissible hearsay was not challenged as such at trial, and is unpreserved for review as a matter of law. Absent such a request for any curative relief, the statement was properly received into evidence (see, Matter of MacDonald, 40 N.Y.2d 995, 996; cf., People v. Tucker, 174 A.D.2d 447). The jury received instructions that their recollection of the evidence governed, and that comments on summation constituted only argument. Further, the jury twice heard read-back testimony of the alibi witnesses, and had ample opportunity to evaluate that evidence.
As to defendant's remaining claims, we find them to be unpreserved for appellate review. Were we to review in the interest of justice, we would find them to be without merit.
Concur — Carro, J.P., Milonas, Ellerin and Ross, JJ.