|People v Green|
|2015 NY Slip Op 08788 [134 AD3d 418]|
|December 1, 2015|
|Appellate Division, First Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
| The People of the State of New York,
Edward Green, Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 14, 2013, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of seven years, unanimously affirmed.
The court properly declined to charge petit larceny as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he stole property without using force. Defendant either participated in a robbery or committed no crime; there was no evidence to support a theory that he somehow "opportunistically" took the victim's property without being part of the robbery (see e.g. People v Flores, 28 AD3d 380 [1st Dept 2006], lv denied 7 NY3d 755 ).
Defendant's challenges to the prosecutor's summation are entirely unpreserved, notwithstanding his postsummations mistrial motion (see People v Romero, 7 NY3d 911, 912 ; People v LaValle, 3 NY3d 88, 116 ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The remarks at issue generally constituted permissible responses to defense counsel's summation arguments, and they did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 ; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 ). Concur—Mazzarelli, J.P., Moskowitz, Richter and Manzanet-Daniels, JJ.