PEOPLE v. DIAZ (1999)

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Aiello, J.), rendered June 29, 1995, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered June 29, 1995, revoking a sentence of probation previously imposed by the same court (Goldstein, J.), upon a finding that he had violated a condition thereof, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree.

ORDERED that the judgment and amended judgment are affirmed.

The defendant's contention that the evidence was insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05[2];  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   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 the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

In making its Sandoval ruling, the trial court properly weighed the competing considerations and determined that the probative value of the acts concerning the defendant's tendency to place his self-interest above that of society outweighed any prejudice (see, People v. Bristow, 234 A.D.2d 378, 651 N.Y.S.2d 884).

The defendant's contention that he is entitled to a new trial because of improper comments made by the prosecutor during summation is, in part, unpreserved for appellate review (see, CPL 470.05[2];  People v. Udzinski, supra).   In any event, this claim is without merit, as the prosecutor's remarks constituted permissible comment on the evidence and a fair response to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. D'Allessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001;  People v. Shepherd, 176 A.D.2d 369, 370, 574 N.Y.S.2d 596).

The defendant's sentence of probation was properly revoked (see, People v. Britton, 158 A.D.2d 932, 551 N.Y.S.2d 717).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.