People v Esquivel

People v Esquivel 2007 NY Slip Op 10048 [46 AD3d 394] December 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Jose Esquivel, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Robin Nichinsky of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered January 8, 2004, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of nine years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). Three witnesses incriminated defendant, and the inconsistencies in their testimony were not so significant as to warrant a different result.

Defendant did not preserve his contentions regarding the prosecutor's conduct, and we decline to review them in the interest of justice. Were we to review these claims, we would find that some of the prosecutor's comments during her opening statement and summation should have been avoided, including her unnecessary emphasis on the fact that the incident took place on Christmas and a few months after the September 11, 2001 terrorist attacks, but that there was no pattern of inflammatory remarks warranting reversal (see People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for a reduction of sentence.

As the People concede, since the crime was committed prior to the effective date of the [*2]legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed. Concur—Lippman, P.J., Marlow, Williams and Gonzalez, JJ.