| People v Brown |
| 2011 NY Slip Op 09529 [90 AD3d 575] |
| Dcmbr 27, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Thomas Brown, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered January24, 2008, as amended April 11, 2008, convicting defendant, after a jury trial, of murder in thesecond degree and criminal possession of a weapon in the third degree, and sentencing him to anaggregate term of 28 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 349 [2007]). There is no basis fordisturbing the jury's determinations regarding credibility and identification. The testimony of theidentifying eyewitness was corroborated by other evidence, including testimony from acooperating accomplice.
Defendant's arguments about the court interjecting itself into the proceedings are unpreservedand we decline to review them in the interest of justice. As an alternative holding, we find thatdefendant was not deprived of a fair trial. While some of the court's comments may have beeninadvisable, there was nothing in the court's conduct that requires reversal.
The challenged portion of the prosecutor's summation did not shift the burden of proof.Instead, the prosecutor was properly responding to defendant's summation arguments concerningthe cooperating accomplice's alleged motives to falsify. The prosecutor was entitled to refutethose claims by arguing that they were implausible and unsupported by the evidence (see e.g.People v Sprinkle, 221 AD2d 269 [1995], lv denied 87 NY2d 925 [1996]). In anyevent, any prejudice was alleviated by the court's curative instructions.[*2]
The court properly imposed consecutive sentences. Themurder and weapon possession were separate acts for sentencing purposes (see PenalLaw § 70.25 [2]; People vWright, 87 AD3d 229 [2011], lv granted 2011 NY Slip Op 78815[U] [2011]).Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.