Opinion
2011-12-27
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.
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 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [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 A.D.2d 269, 634 N.Y.S.2d 83 [1995], lv. denied 87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518 [1996] ). In any event, any prejudice was alleviated by the court's curative instructions.
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 A.D.3d 229, 926 N.Y.S.2d 43 [2011], lv. granted 2011 N.Y. Slip Op. 78815[U], 2011 WL 2899328).