| People v Scott |
| 2009 NY Slip Op 02429 [60 AD3d 1483] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rickie Scott,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedFebruary 7, 2008. The judgment convicted defendant, upon a jury verdict, of attempted murderin the second degree, assault in the first degree, robbery in the first degree and menacing in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault inthe first degree (§ 120.10 [1]), robbery in the first degree (§ 160.15 [4]) andmenacing in the second degree (§ 120.14 [1]), arising out of three separate incidents.Contrary to defendant's contention, the evidence is legally sufficient to support the conviction ofattempted murder and assault (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Viewing the evidence in light of the elements of attempted murder and assault as charged tothe jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that theverdict with respect to those crimes is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant contends that County Court erred in refusing to suppress the in-courtidentification of an eyewitness to the shooting incident who had identified him in a photo arraybecause the police compiled the photo array based upon their own suspicion of the perpetratorrather than a description given by the shooting victim. We reject that contention. The record ofthe suppression hearing supports the court's determination that the photo array was " 'not sosuggestive as to create the substantial likelihood that defendant would be misidentified' "(People v Johnson, 52 AD3d 1286, 1286 [2008], lv denied 11 NY3d 738[2008]; see People v Munoz, 223 AD2d 370 [1996], lv denied 88 NY2d 990[1996]).
Contrary to the further contention of defendant, the court properly denied his motion to severthe menacing count. That count was properly joinable with the remaining counts of theindictment pursuant to CPL 200.20 (2) (b) inasmuch as proof of each count "would be material[*2]and admissible as evidence in chief upon a trial" of the othercounts (id.; see People v Lee, 275 AD2d 995, 996 [2000], lv denied 95NY2d 966 [2000]).
We reject the contention of defendant that he was denied a fair trial by prosecutorialmisconduct on summation. "Although the prosecutor improperly made a 'safe streets' commentby urging the jury to do justice" in order to prevent the escalation of crime in the neighborhoodwhere the shooting occurred, we conclude that the prosecutor's "isolated comment was not soegregious as to deprive defendant of a fair trial" (People v Tolliver, 267 AD2d 1007,1008 [1999], lv denied 94 NY2d 908 [2000]). "The remaining comments challenged bydefendant were fair comment on the evidence or fair responses to the comments of defensecounsel and did not constitute [prosecutorial] misconduct" (id.; see People vHalm, 81 NY2d 819, 821 [1993]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Peradotto, Carni and Green, JJ.