| People v Torres |
| 2011 NY Slip Op 08679 [90 AD3d 420] |
| Dcmbr 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidTorres, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered May 13, 2010,convicting defendant, after a jury trial, of manslaughter in the first degree and assault in thesecond degree, and sentencing him to an aggregate term of 13 years, unanimously affirmed.
To the extent defendant is challenging the legal sufficiency of the evidence, that claim isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits (see People vDanielson, 9 NY3d 342, 348-349 [2007]).
Defendant claimed he was justified in stabbing the deceased, and that he accidentally stabbedthe surviving victim. These defenses presented issues of credibility, and there is no basis fordisturbing the jury's determinations. The physical evidence and the forensic expert testimony,viewed as a whole, tended to show that defendant's use of deadly force was unjustified.
Defendant was not deprived of a fair trial by the challenged portions of the prosecutor'ssummation (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976[1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]). Defendant contends that the prosecutor's line of argument concerning certainphysical evidence was speculative and unsupported by the record. However, this line of argumentdrew permissible inferences from the record and was responsive to the defense summation,which drew a competing inference. Furthermore, the court gave a curative instruction that wassufficient to prevent any prejudice.
Defendant also claims that the prosecutor misstated the law of justification. However, thecourt gave a prompt curative instruction, and it thoroughly explained justification in its maincharge. The jury is presumed to have followed the court's instructions (see People vDavis, 58 NY2d 1102, 1104 [1983]).[*2]
Defendant's remaining challenges to the prosecutor'ssummation are unpreserved and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal. Concur—Tom, J.P., Andrias, Catterson,Abdus-Salaam and RomÁn, JJ.