| People v Hayes |
| 2008 NY Slip Op 01781 [48 AD3d 831] |
| February 26, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Taheen Hayes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered July 7, 2005, convicting him of manslaughter in the first degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that improprieties in the trial court's supplemental juryinstructions and the prosecutor's summation combined to deprive him of a fair trial isunpreserved for appellate review. The defendant failed to object with specificity to thechallenged summation remarks and did not move for a mistrial on this ground (see CPL470.05 [2]; People v Tonge, 93 NY2d 838 [1999]; People v Tevaha, 84 NY2d879 [1994]; People v Evans, 291 AD2d 569 [2002]; People v Livigni, 288 AD2d323 [2001]). The trial court's response to a jury note seeking supplemental instructions regardingthe defendant's statements to the police was meaningful and did not result in any prejudice to thedefendant (see CPL 310.30; People v Santi, 3 NY3d 234, 248 [2004]; Peoplev Almodovar, 62 NY2d 126, 131 [1984]; People v Malloy, 55 NY2d 296, 302[1982], cert denied 459 US 847 [1982]; People v Arcarola, 96 AD2d 1081[1983]). Moreover, although this Court has disapproved of a prosecutor, in summation,characterizing the defense theory as a "conspiracy" by the police and prosecution witnesses toconvict the defendant (see People v Colonna, 135 AD2d 724 [1987]; People vCowan, 111 AD2d 343 [1985]), the remarks here constituted a fair response to the defensecounsel's summation theory of police misconduct (see People v Mitchell, 114 AD2d 978[1985]).[*2]
The sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]).
The Supreme Court sentenced the defendant to a determinate prison term of 25 years. Insentencing the defendant, the court did not mention the imposition of any period of post-releasesupervision. Therefore, the sentence appealed from never included, and does not now include,any period of post-release supervision (see Hill v United States ex rel. Wampler, 298 US460 [1936]; People v Duncan, 42 AD3d 470 [2007], lv denied 9 NY3d 961[2007]; People v Thompson, 39 AD3d 572 [2007]; People v Smith, 37 AD3d 499[2007]; Earley v Murray, 451 F3d 71 [2006], reh denied 462 F3d 147 [2006],cert denied sub nom. Burhlre v Earley, 551 US —, 127 S Ct 3014[2007]; but see People v Sparber, 34 AD3d 265 [2006], lv granted 9 NY3d 882[2007]). Fisher, J.P., Santucci, Angiolillo and Balkin, JJ., concur.