People v. Jones , 396 N.Y.S.2d 87 ( 1977 )

Appeal from a judgment of the County Court of Broome County, rendered November 28, 1975, upon a verdict convicting defendant of the crime of robbery in the first degree. On this appeal defendant contends that certain remarks made by the prosecution during the trial deprived him of a fair trial and that his guilt was not established beyond a reasonable doubt. As to the alleged improper comments by the prosecution, defendant concedes that no objections were made at the time of the remarks. Consequently, a review of them on the law is foreclosed (CPL 470.15, subd 4, par [a]; People v Sim, 53 AD2d 992). We are also of the opinion that the remarks were not so prejudicial as to have deprived defendant of a fair trial and, therefore, this court should not exercise its discretionary power to reverse in the interest of justice (CPL 470.15, subd 6, par [a]). Defendant’s other contention that his guilt was not established beyond a reasonable doubt is based on the argument that the verdict was predicated on unreliable testimony offered by the prosecution. In support of this argument, defendant relies mainly upon alleged inconsistencies in the testimony of the victim of the robbery. Although defendant claims that the victim’s testimony varied from his testimony at a previous trial, which resulted in a hung jury, it is clear from the record that any inconsistencies were made known to the jury during the trial. Such testimony presented questions of fact and credibility which were exclusively for the jury to determine (People v Concepcion, 38 NY2d 211). The jury implicitly resolved these questions against defendant and, from our examination of the record in its entirety, we are unable to say, as a matter of law, that his guilt was not established beyond a reasonable doubt. Consequently, the conviction should not be disturbed. Judgment affirmed. Sweeney, J. P., Kane, Mahoney, Main and Herlihy, JJ., concur.