PEOPLE v. AVENT (1999)

Appeal by the defendant from a judgment of the County Court, Rockland County (Berry, J.), rendered June 25, 1996, convicting her of attempted robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the legal sufficiency of the evidence 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] ).

 The defendant's claim that certain comments made by the prosecutor during summation were improper is also unpreserved for appellate review.   The defendant did not object to the challenged remarks or request curative instructions (see, CPL 470.05[2];  People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111;  People v. Scotti, 220 A.D.2d 543, 632 N.Y.S.2d 209).   In any event, the challenged statements were fair comment on the evidence presented at trial, and did not exceed the broad bounds of rhetorical comment allowed on closing argument (see, People v. Morris, 246 A.D.2d 559, 667 N.Y.S.2d 431).

 Contrary to the defendant's contention, the court did not err in refusing to submit the charge of attempted grand larceny in the fourth degree as a lesser-included offense of attempted robbery in the second degree.   Grand larceny in the fourth degree based upon the theory that property was taken from the person of the complainant (see, Penal Law § 155.30[5] ) is not a lesser-included offense of robbery in the second degree (see, People v. Tucker, 221 A.D.2d 670, 634 N.Y.S.2d 218;  Matter of Albert R., 215 A.D.2d 563, 627 N.Y.S.2d 929;  People v. Cintron, 199 A.D.2d 526, 606 N.Y.S.2d 52;  People v. Sidney, 178 A.D.2d 445, 577 N.Y.S.2d 122).

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

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.