PEOPLE v. GREEN (2005)

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered November 14, 2002, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to consecutive terms of 25 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences run concurrently with each other, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning identification and credibility.   Contrary to defendant's arguments, we conclude that the two victims provided highly reliable identification testimony.

 By failing to object, by making generalized objections, and by failing to request further relief after objections were sustained, defendant has not preserved his claims of prosecutorial misconduct and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant did not preserve his challenge to the court's charge on identification and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the court properly explained the application of the law to the facts of the case, without any unfair marshaling of evidence (see People v. Culhane, 45 N.Y.2d 757, 758, 408 N.Y.S.2d 489, 380 N.E.2d 315 [1978], cert. denied 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706 [1978];  People v. Jorge, 181 A.D.2d 441, 442, 580 N.Y.S.2d 351 [1992], lv. denied 80 N.Y.2d 833, 587 N.Y.S.2d 918, 600 N.E.2d 645 [1992] ).

 We find the sentences excessive to the extent indicated.

 Defendant's ineffective assistance of counsel claim rests on matters outside the record and is thus unreviewable on direct appeal. To the extent the present record permits review, it establishes that defense counsel provided effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We have considered and rejected the remaining claims raised in defendant's pro se supplemental brief.