New York Supreme and/or Appellate Courts Appellate Division, First Department
February 9, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Mack
Decided on February 9, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Sweeny, Acosta, Renwick, Roman, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 22, 2008, as amended April 2, 2008, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 14 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 ). There is no basis for disturbing the jury's determinations concerning issues of credibility, including any inconsistencies in testimony.
The court providently exercised its discretion in denying defendant's request to charge the jury that attempted theft of services would not establish that defendant attempted to steal money. The court charged the jury that the People were required to prove an attempt to steal cash, and that was the only theory that the People advanced (see People v James, 35 AD3d 189 , lv denied 8 NY3d 946 ). Accordingly, the additional language requested by defendant was unnecessary.
The court also providently exercised its discretion in precluding defendant from eliciting his own out-of-court statement, given that the People did not open the door to that statement (see People v Massie, 2 NY3d 179, 184 ). The prosecutor's single, innocuous question on redirect examination of an officer was responsive to defendant's cross-examination. The prosecutor did not advance a "failure-to-deny" claim (see People v Carroll, 95 NY2d 375, 385-387 ) or mislead the jury. Defendant's constitutional challenges to the court's ruling are unpreserved, and we decline to review them in the interest of justice. As an alternate holding, we reject these constitutional claims on the merits.
Defendant's constitutional challenge to his sentencing as a persistent violent felony offender is without merit (see People v Bell, 15 NY3d 935 , cert denied __ US __, 131 S Ct 2885 ).
Defendant's pro se claims are unpreserved, unreviewable for lack of a sufficient record, or otherwise procedurally defective, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2012
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