PEOPLE v. EDWARDS (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Bellantoni, J.), rendered August 10, 2005, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The County Court properly admitted into evidence a knife and ski mask recovered from the defendant's person at the scene of the attempted robbery.   Contrary to the defendant's contention, this evidence was relevant and therefore admissible unless its probative value was substantially outweighed by the potential for prejudice (see People v. Mateo, 2 N.Y.3d 383, 424-425, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Wilder, 93 N.Y.2d 352, 356-357, 690 N.Y.S.2d 483, 712 N.E.2d 652;  People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).   Contrary to the defendant's contention, the County Court properly exercised its discretion in concluding that the potential for prejudice did not substantially outweigh the probative value of the evidence (see People v. Ziminski, 34 A.D.3d 507, 823 N.Y.S.2d 519).

The defendant's contention that certain comments made by the People during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the contention is without merit.   Viewed in the context of the entire summation and trial, the challenged remarks were fair response to the defendant's summation, fair comment on the evidence, nonprejudicial in light of the court's curative instructions, or harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Baston, 40 A.D.3d 775, 836 N.Y.S.2d 622).

The defendant's challenge to the legal sufficiency of the evidence is also unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant displayed what appeared to be a firearm during the course of the robbery (see People v. Micolo, 30 A.D.3d 615, 616, 818 N.Y.S.2d 230;  People v. Avilla, 234 A.D.2d 45, 650 N.Y.S.2d 674;  People v. Aaron, 233 A.D.2d 231, 650 N.Y.S.2d 535;  People v. Wells, 221 A.D.2d 281, 634 N.Y.S.2d 462;  People v. Guerriero, 221 A.D.2d 560, 561, 633 N.Y.S.2d 597;  People v. Haney, 162 A.D.2d 613, 556 N.Y.S.2d 939).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Lopez, 73 N.Y.2d 214, 222, 538 N.Y.S.2d 788, 535 N.E.2d 1328;  People v. Micolo, 30 A.D.3d 615, 616, 818 N.Y.S.2d 230;  People v. Haney, 162 A.D.2d at 614, 556 N.Y.S.2d 939).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).