THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LEE GLENN DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him following a jury trial of, inter alia, two counts of robbery in the second degree (Penal Law § 160.10[1], [2][b] ), defendant contends that the conviction is not supported by legally sufficient evidence.   By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve that contention for our review (see People v. Lane, 7 NY3d 888, 889;  People v. Hines, 97 N.Y.2d 56, 61, rearg. denied 97 N.Y.2d 678).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Although one of the victims was unable to identify defendant, the People presented strong identification testimony from the other victim, and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v. McQueen, 170 A.D.2d 696, 697, lv denied 78 N.Y.2d 924;  see generally Bleakley, 69 N.Y.2d at 495).

Defendant failed to preserve for our review his further contention that several of the prosecutor's comments during summation constituted prosecutorial misconduct inasmuch as he failed to object to those comments (see People v. Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849).   With respect to an additional comment by the prosecutor on summation concerning “manufactured evidence,” defendant contends that County Court's response to his objection was improper.   Defendant, however, did not object to that response and thus failed to preserve that contention for our review (see CPL 470.05[2] ).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court