People v. McDonald
| Citation | 144 A.D.2d 701,535 N.Y.S.2d 20 |
| Parties | The PEOPLE, etc., Respondent, v. David McDONALD, Appellant. |
| Decision Date | 28 November 1988 |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (John Gemmill, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Melissa Harrison and Moira E. Casey, of counsel), for respondent.
Before LAWRENCE, J.P., and SPATT, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered August 27, 1986, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by the manner in which the court marshaled the evidence in its charge is not preserved for appellate review since no objection was made to the charge on that ground (see, People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313; People v. Brensic, 119 A.D.2d 281, 506 N.Y.S.2d 570, revd. on other grounds 70 N.Y.2d 9, 517 N.Y.S.2d 120, 509 N.E.2d 1226; People v. Earley, 118 A.D.2d 868, 500 N.Y.S.2d 353). In any event, we do not find the court's failure to refer to the defendant's evidence to be an error since the court need not explain all the contentions of the parties or the inconsistencies in the evidence (see, People v. Saunders, 64 N.Y.2d 665, 485 N.Y.S.2d 250, 474 N.E.2d 610). The trial was short the issues were simple, there were few witnesses and the defendant's position was made clear to the jury in the defense counsel's summation (see, e.g., People v. Patterson, 121 A.D.2d 406, 502 N.Y.S.2d 806, lv. denied 68 N.Y.2d 759, 506 N.Y.S.2d 1047, 497 N.E.2d 717; People v. McCright, 107 A.D.2d 766, 484 N.Y.S.2d 604). Furthermore, the court advised the jurors that their recollection of the evidence was controlling.
Only one of the prosecutor's summation remarks now complained of on appeal was preserved for review by a timely objection (see, People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111; People v. Hayden, 128 A.D.2d 726, 513 N.Y.S.2d 220, lv. denied 69 N.Y.2d 950, 516 N.Y.S.2d 1033, 509 N.E.2d 368). This comment did not deprive the defendant of a fair trial in view of the overwhelming evidence of his guilt (see, People v. Yaghnam, 135 A.D.2d 763, 522 N.Y.S.2d 668). As to those remarks which were not preserved for review, we find that they...
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