People v. Gordon ( 1992 )

Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J.), rendered December 21, 1987, convicting defendant, after a jury trial., of attempted robbery in the first and second degrees, and sentencing him as a predicate felony offender to concurrent terms of imprisonment of 5 to 10 years and 2% to 5Vi years, respectively, unanimously affirmed.

Defendant’s arguments that he was deprived of a fair trial by the prosecutor’s summation and the court’s charge on credibility are unpreserved and in any event, without merit. None of the challenged remarks in the summation could have diverted the jury’s attention from a proper determination of guilt or innocence and the court’s comments on credibility, read as a whole, were fair (People v Canty, 60 NY2d 830, 831-832). Nor do we find that the credibility of the intended victim was improperly bolstered through prompting by the court or prosecutor. The court was not encouraging the intended victim to change his testimony when it directed that he write down, rather than utter, the offensive language he claimed defendant had used during the failed robbery attempt, but rather facilitating the receipt of relevant evidence. Finally, the verdict does not rest on inadmissible hearsay. The statements of the intended victim’s brother were properly received not for their truth but to show that an argument was taking place, and counsel’s objections to evidence of the brother’s thoughts and observations were sustained. Concur — Carro, J. P., Kupferman, Asch and Smith, JJ.