| People v Spralling |
| 2012 NY Slip Op 00288 [91 AD3d 510] |
| Jnury 19, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidSpralling, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered June 21, 2006,convicting defendant, following a jury trial, of criminal possession of a weapon in the seconddegree, and sentencing him, as a second felony offender, to a term of 12 years, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis fordisturbing the jury's determinations of credibility and identification. The fact that the juryacquitted defendant of homicide charges involving the same weapon does not warrant a differentconclusion in this case (see People v Rayam, 94 NY2d 557 [2000]).
The verdict was not repugnant, and the court properly denied defendant's application toresubmit the case to the jury. Defendant's acquittal of second-degree murder and first-degreemanslaughter did not negate any essential element of second-degree criminal possession of aweapon (see People v Muhammad,17 NY3d 532 [2011]; People v Tucker, 55 NY2d 1, 7 [1981]). Because a repugnancyanalysis requires that "we review the elements of the offenses as charged to the jury withoutregard to the proof that was actually presented at trial," no basis exists to hold the verdict wasrepugnant (People v Muhammad at 542). Here, based on the instructions to the jury, theycould have found that defendant possessed the gun with the intent to use it unlawfully eventhough they acquitted on the murder and manslaughter counts, crimes that require a differentintent.
The prosecutor's summation did not deprive defendant of a fair trial. The only one ofdefendant's challenges to the summation that is arguably preserved is his claim that theprosecutor shifted the burden of proof when he commented on defendant's introduction of adocument, instead of calling the declarant himself, as part of the defense case. We conclude thatthe prosecutor's brief remark was directly responsive to a portion of defendant's summation, andconstituted permissible comment on an alleged weakness in the defense case. Defendant'sremaining arguments concerning the prosecutor's summation are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we find no basis for reversal(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 81 NY2d 884[1993]).[*2]
The court properly exercised its discretion in denyingdefendant's application for a mistrial, the only remedy requested, when one of the People'switnesses testified that he received threats from a close friend of defendant. The court sustaineddefendant's objection and struck a portion of the witness's testimony. Under the circumstances,this was sufficient to prevent any prejudice (see People v Davis, 58 NY2d 1102 [1983]).
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Andrias,DeGrasse, Richter and Abdus-Salaam, JJ.