PEOPLE v. DAVIS (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered August 4, 1997, convicting him of robbery in the third degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant erroneously contends that the prohibition against double jeopardy bars his conviction of criminal possession of stolen property in the fifth degree, because his conviction of robbery in the third degree arose from the same factual predicate.  “Robbery requires proof of a fact not required for possession of stolen property (namely forcible stealing;  see, Penal Law, § 160.05), and possession of stolen property requires proof of a fact not required for robbery (namely, intent to benefit the possessor or a person other than the owner, or to impede recovery of the property by the owner;  see, Penal Law, § 165.40)” (People v. Artis, 74 A.D.2d 644, 425 N.Y.S.2d 142;  see, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306;  People v. Prescott, 66 N.Y.2d 216, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349;  People v. Perkins, 161 Misc.2d 502, 614 N.Y.S.2d 709).

The defendant's contention that certain statements made by the prosecutor on summation constituted reversible error is largely unpreserved for appellate review since he failed to object or did not object with sufficient specificity, failed to ask for curative instructions, or failed to request a mistrial when they were made (see, CPL 470.05[2];  People v. Antonio, 255 A.D.2d 449, 682 N.Y.S.2d 214;  People v. Persaud, 237 A.D.2d 538, 656 N.Y.S.2d 34).   In any event, his contention is without merit since the prosecutor's statements were either fair comment on the facts adduced at trial (see, People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), a fair response to the defense counsel's arguments on summation (see, People v. Scotti, 220 A.D.2d 543, 632 N.Y.S.2d 209;  People v. Rosario, 195 A.D.2d 577, 601 N.Y.S.2d 836), or do not require reversal.

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.

MEMORANDUM BY THE COURT.