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People v. McKinnie

188 A.D.2d 274 Court N.Y. App. Div. Decision date 1992-12-01 English

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p. 274
The People of the State of New York, Respondent, v Roosevelt McKinnie, Appellant.

Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered February 15, 1991, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a second violent felony offender, to concurrent terms of 6 to 12 years and 2 to 4 years, respectively, unanimously affirmed.

p. 275
The claimed errors in the court’s charge are unpreserved (CPL 470.05 [2]), and, in any event, without merit. The court’s instruction on reasonable doubt was proper (see, People v Antommarchi, 176 AD2d 104 , revd on other grounds 80 NY2d 247 ), and, indeed, defense counsel used similar language in summation. The other instruction challenged on appeal neither purported to, nor had the effect of, shifting the burden of proof, but merely stated defendant’s contentions.

The prosecutor’s comments in summation were an appropriate response to matters stressed by the defense (see, People v Wright, 172 AD2d 293 , 294, lv denied 77 NY2d 1003 ). The claim that the prosecutor improperly vouched for the complainant’s credibility is unpreserved, and, in any event, this isolated statement did not deprive defendant of a fair trial.

Defendant’s contention that the sentence is excessive is without merit in view of his prior felony conviction and commission of this crime while still on parole. Concur — Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.

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