| People v Green |
| 2011 NY Slip Op 09345 [90 AD3d 948] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rodney Green, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered May 27, 2009, convicting him of murder in the second degree,criminal possession of a weapon in the second degree, burglary in the third degree, tamperingwith physical evidence, and criminal mischief in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the defendant (see People vMartin, 59 NY2d 704, 705 [1983]), there was no reasonable view of the evidence to supporta finding that the defendant intended to cause serious physical injury to the victim, rather than tokill her (see People v Moreno, 16AD3d 438 [2005]; People vMaldonado, 5 AD3d 505, 506 [2004]; People v DeLucia, 302 AD2d 280 [2003];People v Wheeler, 257 AD2d 673 [1999]; People v Kelly, 221 AD2d 661 [1995],cert denied 517 US 1200 [1996]; People v Green, 143 AD2d 768, 770 [1988]).Accordingly, the Supreme Court correctly refused to charge manslaughter in the first degree as alesser-included offense of murder in the second degree.
The defendant contends that certain remarks made by the People on summation constitutedreversible error. However, the remarks alleged to be inflammatory and prejudicial were either faircomment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]; People v Gouveia, 88 AD3d 814[2011]), responsive to arguments and theories presented in the defense summation (seePeople v Galloway, 54 NY2d 396 [1981]; People v Gouveia, 88 AD3d 814 [2011]; People v Crawford, 54 AD3d 961[2008]), or harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975];People v Hill, 286 AD2d 777, 778 [2001]).
The sentence imposed was not excessive (see People v Thompson, 60 NY2d 513,519 [1983]; People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Balkin, Eng and Austin,JJ., concur.