| People v Seeler |
| 2009 NY Slip Op 04534 [63 AD3d 1595] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael D.Seeler, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered April 11, 2006. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree (two counts) and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts of murder in the second degree (Penal Law § 125.25 [1], [3]) and one count ofrobbery in the first degree (§ 160.15 [1]). Contrary to the contention of defendant,Supreme Court properly denied his request to charge manslaughter in the first degree (§125.20 [1]) and manslaughter in the second degree (§ 125.15 [1]) as lesser includedoffenses of murder in the second degree. The evidence established that defendant shot the victimtwice in the back of the head at close range, and there is thus no reasonable view of the evidencethat defendant intended to cause serious physical injury to the victim but not to kill him(see § 125.20 [1]; Peoplev Ramsey, 59 AD3d 1046 [2009]; People v Tyler, 43 AD3d 633, 634 [2007], lv denied 9NY3d 1010 [2007]; People v Wheeler, 257 AD2d 673 [1999], lv denied 93NY2d 930 [1999]; see generally Peoplev Miller, 6 NY3d 295, 302 [2006]; People v Glover, 57 NY2d 61, 63 [1982]).There is also no reasonable view of the evidence that defendant engaged in reckless rather thanintentional conduct (see Penal Law § 125.15 [1]; People v Ware, 303AD2d 173 [2003], lv denied 100 NY2d 543 [2003]).
We reject the further contention of defendant that he was denied a fair trial by prosecutorialmisconduct during summation. The comments by the prosecutor concerning the prosecutionwitnesses were fair comment in response to defense counsel's summation (see People vHalm, 81 NY2d 819, 821 [1993]; People v Pepe, 259 AD2d 949, 950 [1999], lvdenied 93 NY2d 1024 [1999]). We agree with defendant that the comment by the prosecutorthat defendant's testimony was a "fabrication" was improper (see People v Fiori, 262AD2d 1081 [1999]; People v Bonilla, 170 AD2d 945 [1991], lv denied 77 NY2d904 [1991]). That single instance of misconduct, however, did not deprive defendant of a fairtrial (see generally People v Moore,41 AD3d 1149, 1151-1152 [2007], lv denied 9 NY3d 879 [2007],reconsideration denied 9 NY3d 992 [2007]; People v Wilson, 34 AD3d 1276 [2006], lv denied 8 NY3d886 [2007]; People v Walker, 234 AD2d 962, 963 [1996], lv denied 89 NY2d1042 [1997]). Finally, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.