People v Torres

People v Torres 2011 NY Slip Op 08679 Decided on December 1, 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 1, 2011
Tom, J.P., Andrias, Catterson, Abdus-Salaam, Román, JJ.
6213 3545/07

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

v

David Torres, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Susan H. Salomon of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Allen H.
Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered May 13, 2010, convicting defendant, after a jury trial, of manslaughter in the first degree and assault in the second degree, and sentencing him to an aggregate term of 13 years, unanimously affirmed.

To the extent defendant is challenging the legal sufficiency of the evidence, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

Defendant claimed he was justified in stabbing the deceased, and that he accidentally stabbed the surviving victim. These defenses presented issues of credibility, and there is no basis for disturbing the jury's determinations. The physical evidence and the forensic expert testimony, viewed as a whole, tended to show that defendant's use of deadly force was unjustified.

Defendant was not deprived of a fair trial by the challenged portions of the prosecutor's summation (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]). Defendant contends that the prosecutor's line of argument concerning certain physical evidence was speculative and unsupported by the record. However, this line of argument drew permissible inferences from the record and was responsive to the defense summation, which drew a competing inference. Furthermore, the court gave a curative instruction that was sufficient to prevent any prejudice.

Defendant also claims that the prosecutor misstated the law of justification. However, the court gave a prompt curative instruction, and it thoroughly explained justification in its main charge. The jury is presumed to have followed the court's instructions (see People v Davis, 58 NY2d 1102, 1104 [1983]). [*2]

Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

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

ENTERED: DECEMBER 1, 2011

CLERK