People v. Smokes

Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered August 20, 1987, convicting defendant, after a jury trial, of murder in the second degree, manslaughter in the first degree, robbery in the first degree, and robbery in the second degree and sentencing him to concurrent indeterminate terms of imprisonment of 25 years to life, 8 Vs to 25 years (two terms), and 5 to 15 years, respectively, unanimously affirmed. Defendant’s conviction was supported by the weight of the evidence. Three acquaintances of defendant identified him as the assailant who viciously knocked the 70-year-old victim to the ground, setting up the robbery. While defendant presented an alibi and contested the veracity of the People’s witnesses, these matters were squarely placed before the jury, and we find that the jury’s determination, crediting the witnesses’ testimony, was proper. (People v Bleakley, 69 NY2d 490, 495.) The eyewitness version of the crime was supported by a fourth witness, who claimed that defendant, one day after the incident, implicated himself in a killing. [697] We also find no merit to defendant’s contention that the proof of similar, prior uncharged crimes committed by defendant and his accomplice were improperly admitted. As we recently ruled on the appeal of the accomplice (People v Warren, 162 AD2d 361), the probative value of the challenged evidence outweighed its potential for prejudice, and was admissible to prove intent to rob and kill the decedent. Defendant’s contention that the court erred by not giving a limiting instruction on the prior crime evidence is unpreserved, and we decline to reach it in the interest of justice. Were we to examine the issue, we would find no prejudice, particularly since the proof was generalized and was used by the prosecutor in summation properly. We have considered the defendant’s remaining contentions and find them to be without merit. Concur — Ross, J. P., Kassal, Ellerin and Wallach, JJ.