| People v Howard |
| 2009 NY Slip Op 03538 [61 AD3d 993] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lionel Howard, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered November 14, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the adjudication of thedefendant as a persistent violent felony offender; as so modified, the judgment is affirmed.
The supplemental instruction on intent given by the Supreme Court was a meaningfulresponse which adequately conveyed the relevant legal principles (see People v Steinberg,79 NY2d 673, 684 [1992]; People v Malloy, 55 NY2d 296, 301 [1982], certdenied 459 US 847 [1982]; Peoplev Bryant, 13 AD3d 1170 [2004]; People v Wise, 204 AD2d 133, 134-135[1994]; People v Fraser, 181 AD2d 425 [1992]; People v Barnes, 265 AD2d 169[1999]; People v Jones, 229 AD2d 597 [1996]; CPL 310.30), and did not shift the burdenof proof (cf. Sandstrom v Montana, 442 US 510, 515 [1979]; People v Getch, 50NY2d 456, 465 [1980]). Accordingly, defense counsel's failure to object to the supplementalcharge did not deny the defendant the effective assistance of counsel (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Any prejudice suffered by the defendant from the improper summation comment by theprosecutor regarding extreme emotional disturbance was ameliorated by the court's instructions(see People v Svanberg, 293 AD2d 555 [2002]; People v Rivera, 142 AD2d 614[1988]), and did not deprive the defendant of a fair [*2]trial(see People v Roopchand, 107 AD2d 35, 36 [1985]). The defendant's remainingchallenges to comments made by the prosecutor during summation are unpreserved for appellatereview (see CPL 470.05 [2]). In any event, either the challenged comments constitutedfair comment on the evidence (see People v Galloway, 54 NY2d 396 [1981]; Peoplev Ashwal, 39 NY2d 105 [1976]), or any prejudice suffered by the defendant was amelioratedby the court's instructions (see People v Svanberg, 293 AD2d at 555), and did notdeprive the defendant of a fair trial (see People v Roopchand, 107 AD2d at 36, affd65 NY2d 837 [1985]).
Although the Supreme Court improperly adjudicated the defendant a persistent violentfelony offender (see Penal Law § 70.02 [1]; § 70.08 [1] [a]), under thecircumstances present here, resentencing is not warranted. The Supreme Court noted that theadjudication did not change the applicable sentencing structure, heard argument referencing thecorrect minimum and maximum sentences for murder in the second degree, and properlyconsidered the defendant's prior criminal history, the circumstances of the crimes charged, andthe purpose of the penal sanction in rendering sentence (see People v Farrar, 52 NY2d302, 305 [1981]; People v Suitte, 90 AD2d 80, 83 [1982]). Accordingly, the adjudicationis vacated, but the sentence remains. Spolzino, J.P., Florio, Covello and Eng, JJ., concur.