Opinion
January 13, 2000
Judgment, Supreme Court, New York County (Marcy Kahn, J., at hearing; Ronald Zweibel, J., at jury trial) rendered June 2, 1997, convicting defendant of criminal possession of a weapon in the third degree, criminal possession of stolen property in the third degree, attempted grand larceny in the third degree and possession of burglar's tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, 3+ to 7 years, and 2 to 4 years and 1 year, respectively, unanimously affirmed.
Richard Nahas for Respondent.
Pro Se for Defendant-Appellant.
ROSENBERGER, J.P., MAZZARELLI, WALLACH, SAXE, JJ.
The hearing court properly denied defendant's motion to suppress physical and identification evidence. Contrary to defendant's argument, his arrest was based upon probable cause.
Defendant's guilt was proven beyond a reasonable doubt and the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). The jury had ample basis to credit the testimony of the People's witnesses and to reject defendant's testimony.
Defendant's claims of prosecutorial misconduct in cross-examination and summation are not preserved for appellate review and we decline to review them in the interest of justice. Were we to review these claims, we would find that the question regarding defendant's postarrest efforts to locate an alleged witness did not violate defendant's constitutional right to remain silent (see, Jenkins v. Anderson, 447 U.S. 231), and that the comments in question constituted fair comment on the evidence presented within the broad bounds of rhetorical comment (see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976).
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.