People v. Herlan

Hancock, Jr., J. P., and Boomer, J. (dissenting).

We respectfully dissent and vote to affirm. Defense counsel failed to object to any of the claimed instances of prosecutorial misconduct and thus he did not preserve the issue for appellate review (CPL 470.05). We see no reason why, under the facts of this case, we should exercise our discretion and reverse the conviction in the interest of justice. The proof of defendant’s guilt was strong and convincing and the defendant’s testimony that he did not participate in the burglary lacked credibility. Defendant told the jury that he happened to be in the area and saw a man crawling through the front window of the Club Como; he yelled into the window to scare the person out and then went through the weeds to the back door of the club; the door flung open and the man came out with a crowbar in *648his hand; when defendant went to grab the man, the man dropped the crowbar and threw defendant to the ground and defendant picked up the crowbar just as the police arrived. This testimony not only was incredible, but it was impeached by defendant’s inconsistent statements and by his prior criminal convictions. (Appeal from judgment of Supreme Court, Erie County, Ostrowski, J. — burglary, third degree.) Present — Hancock, Jr., J. P., Callahan, Boomer, Green and Schnepp, JJ.