| People v Nelson |
| 2013 NY Slip Op 08273 [112 AD3d 744] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Racca Nelson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Collini, J.), rendered June 1, 2006, convicting him of murder in the second degree andattempted murder in the second degree (two counts), upon a jury verdict, and sentencinghim to an indeterminate term of imprisonment of 25 years to life upon the conviction ofmurder in the second degree and determinate terms of imprisonment of 20 years followedby periods of postrelease supervision of five years upon each conviction of attemptedmurder in the second degree, with all sentences to run consecutively to each other.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentences imposed upon the convictions of attemptedmurder in the second degree are to run concurrently with each other and consecutively tothe sentence imposed upon the conviction of murder in the second degree; as somodified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of murder in the second degree and attempted murder in the second degree isunpreserved for appellate review (see CPL 470.05 [2]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of a fair trial when the prosecutorwas permitted to admit into evidence certain writings attributable to the defendant isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the writingswere properly admitted because they were relevant to the defendant's identity as theperpetrator and his consciousness of guilt, their probative value outweighed the potentialprejudice, and the Supreme Court gave an appropriate [*2]instruction to the jury with respect to this evidence (see People v Bohan, 100AD3d 767 [2012]; People vFitzgerald, 84 AD3d 1397 [2011]).
The defendant's contention that the prosecutor's comments during summationdeprived him of his right to a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the prosecutor's comments did not deprive the defendantof a fair trial, as the challenged comments were a fair response to the defendant's attackon the credibility of the complainants, did not denigrate the defense, and were within thebounds of appropriate argument based on the evidence (see People v Galloway,54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]).
The Supreme Court did not err in imposing consecutive sentences, since thedefendant committed separate acts, none of which was a material element of any other(see Penal Law § 70.25; People v Sumpter, 203 AD2d 605 [1994];People v Vasquez, 134 AD2d 468, 469 [1987]; People v Sanchez, 131AD2d 606, 609 [1987]). However, the sentence imposed was excessive to the extentindicated herein (see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Lott,Austin and Hinds-Radix, JJ., concur.