People v Sunter

People v Sunter 2008 NY Slip Op 09459 [57 AD3d 226] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Male Sunter, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Sara Gurwitch of counsel), for appellant.

Male Sunter, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 11, 2006, convicting defendant, after a jury trial, of robbery in the first and second degrees and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 25 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the first-degree robbery conviction to 20 years, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]). The court only permitted the prosecutor to elicit two car theft convictions, which were highly probative of defendant's credibility and neither unduly prejudicial nor excessively stale.

The court properly exercised its discretion in denying defendant's mistrial motion based on the prosecutor's summation. There was nothing in the summation that deprived defendant of a fair trial. The challenged remarks generally constituted fair comment on the evidence and reasonable inferences to be drawn therefrom, and were responsive to defense arguments (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]). The case turned on credibility, and the prosecutor did not shift the burden of proof by pointing out logical gaps in defendant's testimony and in defense counsel's arguments. The court properly instructed the jury as to the burden of proof, and the jury could not have been misled in that regard, even though some of the prosecutor's phrasing should have been avoided.

With respect to defendant's pro se arguments, his claim that the court should have instructed the jury on justification is meritless, his ineffective assistance of counsel claim is [*2]unreviewable on direct appeal because it involves matters outside the record, and his remaining claims are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits.

We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.