People v. Monroe , 622 N.Y.S.2d 34 ( 1995 )

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered August 19, 1992, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 Vi to 7 years and a $5,000 fine, unanimously modified, on the law and the facts, to the extent of deleting that portion of the sentence which provides for the payment of the fine and to return to defendant any monies withheld for such purpose, and otherwise affirmed.

The court properly declined to charge petit larceny as a lesser included offense of robbery as the jury could not " ' "resort to sheer speculation” ’ ” or employ "selective dissection of the integrated testimony of [the complaining] witness” and thus there was no "identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which [was] indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime” (People v Scarborough, 49 NY2d 364, 373, 369-370). Further, the prosecutor’s summation was a proper response to the defense contentions (see, People v Galloway, 54 NY2d 396, 399), and thus the court correctly declined to charge the jury on defendant’s right to present inconsistent defenses.

However, as defendant was indigent and represented by assigned counsel at trial as well as on appeal, the imposition of the fine was an improvident exercise of discretion. Concur—Murphy, P. J., Sullivan, Rosenberger and Ross, JJ.