Opinion
March 8, 1990
Appeal from the Supreme Court, New York County, Murray Mogel, J.
While fleeing from an attempted robbery, defendant stabbed the intended victim's friend who came to his aid. The evidence sufficiently established the underlying felony of attempted robbery to support the felony murder conviction. The testimony established that when defendant held the knife to the throat of Mandadiev, the intended robbery victim, he grabbed Mandadiev's left hand, which held a shopping bag containing food. Under the facts and circumstances of this case, it was reasonable for the jury to conclude that defendant was attempting to rob Mandadiev. (See, People v Bracey, 41 N.Y.2d 296, 301.)
The prosecutor's statements on summation of "no testimony presented" were made in response to defendant's summation comment and, in any event, were harmless in view of the overwhelming evidence presented against defendant. (See, People v Crimmins, 36 N.Y.2d 230.) The prosecutor's labeling of the defense argument as a "smokescreen" does not exceed the broad bounds of rhetorical comment permissible in a closing argument. (See, People v Galloway, 54 N.Y.2d 396, 399.)
We are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction", we perceive no abuse of discretion warranting a reduction in sentence. (People v Farrar, 52 N.Y.2d 302, 305.)
Concur — Sullivan, J.P., Carro, Rosenberger, Kassal and Ellerin, JJ.