People v Caban

People v Caban 2015 NY Slip Op 08911 Decided on December 3, 2015 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 3, 2015
Tom, J.P., Sweeny, Andrias, Gische, JJ.
16268 1760/04

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

v

Lynette Caban, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered March 20, 2012, convicting defendant, after a jury trial, of criminally negligent homicide, and sentencing her to a term of one to three years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence was essentially the same as the evidence introduced at defendant's first trial, as described in our prior decision (51 AD3d 455 [1st Dept 2008], revd on other grounds 14 NY3d 369 [2010]), in which, among other things, we rejected defendant's challenges to the sufficiency and weight of the evidence. After considering defendant's present arguments, we find no reason to reach a different conclusion regarding the evidence presented at the retrial.

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2015

CLERK