| People v Brown |
| 2009 NY Slip Op 08462 [67 AD3d 523] |
| November 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamelBrown, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 7,2008, convicting defendant, after a jury trial, of manslaughter in the first degree and criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of 22years, unanimously modified, as a matter of discretion in the interest of justice, to the extent ofreducing the sentence on the manslaughter conviction from 22 years to 20 years, and on the law,to the extent of remanding for the purpose of clarifying whether the sentence actuallypronounced on the weapon conviction was 10 years or five years, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility, including its resolution ofinconsistencies in testimony. Defendant's guilt was established by his companion's testimony,which was corroborated by other proof tending to verify his account of the incident, as well as byconsciousness-of-guilt evidence. The evidence also fails to support defendant's assertion that asecond gunman may have fired the fatal shot.
Defendant's challenges to the prosecutor's opening statement and summation are unpreservedand we decline to review them in the interest of justice. As an alternative holding, we find thatalthough certain of the prosecutor's remarks reflect a deplorable attempt to appeal to theemotions of the jury, they were not so egregious as to warrant reversal (see People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).
We find the sentence on the manslaughter conviction excessive to the extent indicated. Inaddition, there is a disparity between the sentencing minutes, which reflect a five-year term forthe weapon conviction, and the commitment sheet, which reflects a 10-year term. Although thetranscript would normally be controlling, the surrounding circumstances warrant an inferencethat it may be in error. We therefore remand for further proceedings, for the sole purpose of[*2]clarifying what sentence the court actually pronounced, andcorrecting either the record or the commitment sheet. Concur—Gonzalez, P.J., Saxe,McGuire, Acosta and Roman, JJ.