Majority
p. 293The People of the State of New York, Respondent, v Calvin Baker, Appellant. [618 NYS2d 368]
—Judgment, Supreme Court, Bronx County (Antonio I. Brandveen, J.), rendered February 27, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 8 to 16 years, unanimously affirmed.
"It was not an abuse of discretion for the trial court to rule that evidence of defendant’s height would be limited to permitting defendant to stand for the jury to observe.” (People v Rice, 75 NY2d 929 , 932.) Nor was it an abuse of discretion to restrict cross-examination of the arresting officer concerning whether he had measured the height of defendant and other persons (People v Schwartzman, 24 NY2d 241 , 244, cert denied 396 US 846 ).
p. 294
Defendant’s claim that the court should have instructed the jury on the affirmative defense to robbery in the first degree under Penal Law § 160.15 (4) is unpreserved and we decline to review it in the interest of justice. In any event, giving such an instruction sua sponte would have interfered with defense strategy (People v Maldonado, 175 AD2d 698 ). Concur—Asch, J. P., Rubin, Nardelli and Tom, JJ.
Cases cited
- People v. Rice 75 NY2d 929 at 932 p. 293
- People v. Schwartzman 24 NY2d 241 at 244 p. 293
- People v. Maldonado 175 AD2d 698 p. 294