People v. Pondexter , 632 N.Y.S.2d 543 ( 1995 )

—Judgment, Supreme Court, New York County (Renee White, J.), rendered May 13, 1992, convicting defendant, after a jury trial, of robbery in the first degree (two counts) and attempted robbery in the first degree, and sentencing him, as a second felony offender, to consecutive terms of 10 to 20 years, 10 to 20 years, and 5 to 10 years, respectively, unanimously modified as a matter of discretion in the interest of justice, to the extent of directing that the two terms of 10 to 20 years run concurrently with each other and consecutively to the term of 5 to 10 years, and otherwise affirmed.

The trial court properly denied defendant’s request to submit lesser included offenses, because, based on the factual issues actually developed at trial, the jury could not have rationally concluded that defendant committed the lesser crimes but not the greater instead of simply acquitting him (see, People v Ruiz, 216 AD2d 63).

Defendant’s claim that the trial court improperly denied his request to admit into evidence his alibi witness’s date book as a prior consistent statement to rebut a claim of recent fabrication is unpreserved for appellate review as a matter of law, and we decline to review it in the interest of justice. If we were to review it, we would find that the People did not directly, or by inference, attack the alibi witness’s testimony as a recent fabrication (see, People v Seit, 86 NY2d 92, 96).

We find the sentence excessive to the extent indicated. We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Rubin, Kupferman and Williams, JJ.