PEOPLE v. HENDRIX (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered November 20, 2006, convicting him of attempted assault in the first degree, attempted robbery in the second degree, and attempted escape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to establish his guilt as to the charge of attempted assault in the first degree is without merit.   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), there existed a “ ‘valid line of reasoning and permissible inferences [which] could lead a rational person to the conclusion’ ” (People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329, quoting People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367) that the homemade weapon used during the assault constituted a dangerous instrument (see Penal Law § 10.00[13];  §§ 110.00, 120.10[1];  People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30;  People v. Williams, 118 A.D.2d 609, 610, 499 N.Y.S.2d 452).

 The defendant's contention that the prosecution failed to adduce legally sufficient evidence to support his conviction of attempted robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Carter, 44 A.D.3d 677, 679, 843 N.Y.S.2d 381;  People v. James, 35 A.D.3d 762, 825 N.Y.S.2d 776;  People v. Bailey, 19 A.D.3d 431, 796 N.Y.S.2d 401).   In any event, the contention is without merit because there existed a “ ‘valid line of reasoning and permissible inferences [which] could lead a rational person to the conclusion’ ” (People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329, quoting People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367) that the defendant was “aided” in his robbery attempt by “another person actually present” (Penal Law §§ 160.10, 110.00).

Moreover, upon our independent review pursuant to 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).

The defendant's contention that certain statements made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review because he failed to object to any of the challenged comments (see People v. Billups, 41 A.D.3d 492, 493, 835 N.Y.S.2d 909;  People v. Benson, 38 A.D.3d 563, 831 N.Y.S.2d 266;  People v. Bermudez, 36 A.D.3d 928, 929, 828 N.Y.S.2d 554;  People v. Montalvo, 34 A.D.3d 600, 601, 825 N.Y.S.2d 101).   In any event, the prosecutor's remarks were “not so flagrant or pervasive as to deny the defendant a fair trial” (People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95;  see People v. Kadry, 30 A.D.3d 440, 817 N.Y.S.2d 97;  People v. Peterson, 186 A.D.2d 231, 232-233, 587 N.Y.S.2d 770, affd. 81 N.Y.2d 824, 595 N.Y.S.2d 383, 611 N.E.2d 284, cert. denied 519 U.S. 878, 117 S.Ct. 202, 136 L.Ed.2d 138;  cf. People v. Liverpool, 35 A.D.3d 506, 825 N.Y.S.2d 708;  People v. Brown, 30 A.D.3d 609, 610, 817 N.Y.S.2d 139;  People v. Walters, 251 A.D.2d 433, 434-435, 674 N.Y.S.2d 114) and, thus, reversal is not warranted (see People v. Almonte, 23 A.D.3d at 394, 806 N.Y.S.2d 95;  People v. White, 196 A.D.2d 641, 601 N.Y.S.2d 355;  People v. Morales, 168 A.D.2d 85, 90, 570 N.Y.S.2d 831;  People v. Roopchand, 107 A.D.2d 35, 36, 485 N.Y.S.2d 332).

The defendant's remaining contentions are without merit.