People v. Heyward

• Court: New York Supreme Court Appellate Division
• Citation: 160 A.D.2d 470,554 N.Y.S.2d 142
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael HEYWARD, Defendant-Appellant.
• Decision Date: 17 April 1990

Page 142

554 N.Y.S.2d 142

160 A.D.2d 470

The PEOPLE of the State of New York, Respondent, v. Michael HEYWARD, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 17, 1990.

C. Welykyj, New York City, for respondent.

J. Legano, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and MILONAS, ASCH, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Richard T. Andrias, J., at suppression hearing, jury trial and sentence), rendered March 31, 1988, convicting defendant of robbery in the first degree and robbery in the second degree, and sentencing him, as a second felony offender, to respective indeterminate terms of imprisonment of from 5 to 10 and 3 to 6 years, to run concurrently, is unanimously affirmed.

Defendant's contention that his guilt was not proven beyond a reasonable doubt since complainant's testimony, that defendant's accomplice brandished a knife during the robbery, was absent from the arresting officer's memo book notations, is without merit. This issue, based upon credibility only, was squarely placed before the jury and resolved in favor of the People. We decline to disturb that finding ( People v. Mosley, 112 A.D.2d 812, 814, 492 N.Y.S.2d 403, affd 67 N.Y.2d 985, 502 N.Y.S.2d 993, 494 N.E.2d 98). In crediting complainant's testimony, we find that the People proved defendant's guilt beyond a reasonable doubt to the satisfaction of any rational trier of facts ( People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932).

Defendant's further contention that the prosecutor's summation remarks deprived him of a fair trial is also without merit. When defendant objected that the prosecutor tended to shift the burden of proof to the defense, the court immediately gave an unobjected-to curative instruction. When the prosecutor later committed the same error, the court overruled defense counsel's objection but, in its main charge, clearly stated the appropriate burden of proof.

Defendant's remaining contentions have not, as a matter of law, been preserved for review and, accordingly, we decline to consider them (CPL 470.05). In any event, if we were to consider them in the interest of justice, we would find them meritless.