Opinion
March 8, 2001.
Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J. at suppression hearing; John Moore, J. at jury trial and sentence), rendered April 3, 1998, convicting defendant of two counts of robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 20 years, unanimously affirmed.
Kimberly T. Morgan, for respondent.
Richard L. Herzfeld Albert Pogo, Pro Se
Before: Nardelli, J.P., Williams, Tom, Lerner, Rubin, JJ.
The evidence was sufficient to establish defendant's guilt of both counts of robbery. Defendant's intent to appropriate one complainant's ring "was adequately demonstrated by his stated demand [at gun point] that the complainant turn it over, a demand lacking any non-larcenous explanation" (Matter of Yiell C., 253 A.D.2d 718). The fact that defendant returned the ring at the complainant's request, after his accomplice had successfully taken the other complainant's money, is not inconsistent with his original larcenous intent (id.). The jury could have reasonably concluded that defendant returned the ring, not because of an original lack of intent to steal the ring, but because of his satisfaction with the amount of money obtained by the accomplice.
Defendant's suppression motion was properly denied. The hearing court, after viewing the lineup photograph, concluded that the line-up was not unduly suggestive, and there is no basis upon which to disturb that determination (see, People v. Edmonds, 223 A.D.2d 455, lv. denied 88 N.Y.2d 984; People v. Vega, 190 A.D.2d 535, lv denied 81 N.Y.2d 10 81;People v. Gonzalez, 168 A.D.2d 283, lv denied 77 N.Y.2d 906).
The challenged portions of the prosecutor's opening remarks and summation did not deprive defendant of a fair trial (see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal since it involves questions of trial strategy and other matters dehors the record. To the extent the available record permits review, it establishes that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714)
We perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.