People v Brown

People v Brown 2011 NY Slip Op 09529 Decided on December 27, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, Freedman, JJ.
6416 1744/06

[*1]The People of the State of New York, Respondent,

v

Thomas Brown, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Risa Gerson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J.
Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County, (Arlene R. Silverman, J.), rendered January 24, 2008, as amended April 11, 2008, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the third degree, and sentencing him to an aggregate term of 28 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 349 [2007]). There is no basis for disturbing the jury's determinations regarding credibility and identification. The testimony of the identifying eyewitness was corroborated by other evidence, including testimony from a cooperating accomplice.

Defendant's arguments about the court interjecting itself into the proceedings are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that defendant was not deprived of a fair trial. While some of the court's comments may have been inadvisable, there was nothing in the court's conduct that requires reversal.

The challenged portion of the prosecutor's summation did not shift the burden of proof. Instead, the prosecutor was properly responding to defendant's summation arguments concerning the cooperating accomplice's alleged motives to falsify. The prosecutor was entitled to refute those claims by arguing that they were implausible and unsupported by the evidence (see e.g. People v Sprinkle, 221 AD2d 269 [1995], lv denied 87 NY2d 925 [1996). In any event, any prejudice was alleviated by the court's curative instructions. [*2]

The court properly imposed consecutive sentences. The murder and weapon possession were separate acts for sentencing purposes (see Penal Law § 70.25[2]; People v Wright, 87 AD3d 229 [2011], lv granted 2011 NY Slip Op 78815[U]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2011

CLERK