Opinion
171
February 20, 2003.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 22, 1999, convicting defendant, after a jury trial, of robbery in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 25 years, 25 years, and 7 years, respectively, unanimously affirmed.
GINA MIGNOLA, for Respondent.
BRIAN G. CESARATTO, for Defendant-Appellant.
Before: Tom, J.P., Sullivan, Ellerin, Marlow, Gonzalez, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's arguments on this issue are similar to arguments rejected by this Court on a codefendant's appeal (People v. Padilla, 291 A.D.2d 312, lv denied 98 N.Y.2d 653) and there is no basis for reaching a different result herein.
Any error on the part of the court in permitting the People to rehabilitate their main witness with proof of a prior consistent statement to a prosecutor was harmless under the circumstances (see People v. Green, 248 A.D.2d 129, lv denied 92 N.Y.2d 898). Since the People could not establish that the alleged prior consistent statement was ever made, defendant made affirmative use, as additional impeachment material, of the witness's assertions in this regard.
The prosecutor's 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). Nothing in the summation shifted the burden of proof, and, in any event, the court's curative instructions in this regard prevented any possibility of prejudice.
Viewed as a whole, the court's instructions properly conveyed the principles of acting in concert (see Penal Law § 20.00).
We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
Motion seeking leave to file pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.