People v. Walton

Judgment, Su*566preme Court, New York County (Charles Tejada, J.), rendered November 12, 1992, convicting defendant, after a jury trial, of attempted robbery in the third degree and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Defendant failed to preserve for appellate review his claim that the court provided an erroneous supplementary instruction, i.e., that "motivation is not an issue”, and we decline to review it in the interest of justice. Were we to review the claim, we would find it to be without merit. While the absence of motive evidence may tend to establish that a defendant lacked the requisite intent, defendant admitted that he intended to take the victim’s bicycle but proffered a mitigating reason for his unequivocal act, and thus the commission of an intentional act was not in issue (see, People v Luciano, 46 NY2d 767, 768; compare, People v Dinser, 192 NY 80).

Defendant’s claim of prosecutorial misconduct during summation is also unpreserved. In any event, the comments by the People were a proper response to attacks on their witnesses (see, People v Marks, 6 NY2d 67, 78, cert denied 362 US 912). Concur—Sullivan, J. P., Wallach, Kupferman and Ross, JJ.