| People v Thompson |
| 2014 NY Slip Op 04222 [118 AD3d 822] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Freddie Thompson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Anne Grady of counsel), for respondent.
Appeal by the defendant from (1) a judgment of the Supreme Court, RichmondCounty (Rooney, J.), rendered December 15, 2010, convicting him of robbery in the firstdegree (two counts) and escape in the first degree, upon a jury verdict, and imposingsentence, and (2) a resentence of the same court imposed May 3, 2011, sentencing him,as a second violent felony offender, to determinate terms of imprisonment of 20 yearsupon his convictions of robbery in the first degree, followed by five years of postreleasesupervision, to run concurrently with each other and with an indeterminate term of3
Ordered that the appeal from so much of the judgment as imposed the sentence isdismissed, as that portion of the judgment was superseded by the resentence; and it isfurther,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that the resentence is modified, as a matter of discretion in the interest ofjustice, by reducing the determinate terms of imprisonment imposed upon the convictionsof robbery in the first degree from 20 years to 15 years; as so modified, the resentence isaffirmed.
Contrary to the defendant's contention, the Supreme Court did not err in denying hismotion to reopen the Wade hearing (see United States v Wade, 388 US218 [1967]) based on the trial testimony of a witness who viewed a lineup, as he failed toshow that additional pertinent facts had been discovered which he could not havediscovered with reasonable diligence before the determination of his pretrial motion(see People v Fuentes, 53 NY2d 892, 894 [1981]; People v Young, 278AD2d 437, 438 [2000]).
The defendant's contention that certain comments made by the prosecutor during hissummation deprived him of a fair trial is unpreserved for appellate review, as defensecounsel either did not object to the remarks at issue or made only general objections(see CPL 470.05 [2]; People [*2]v Hanson, 100 AD3d771, 772 [2012]; People vCromwell, 99 AD3d 1017, 1017 [2012]; People v Brooks, 89 AD3d 746, 746 [2011]). In any event,this contention is without merit. The prosecutor's comments were fair comment on theevidence, responsive to the defense summation, and remained within the broad bounds ofrhetorical comment permissible in closing arguments (see People v Fields, 115 AD3d673 [2014]; People vRhodes, 115 AD3d 681 [2014]; People v Allen, 114 AD3d 958, 959 [2014]; see alsoPeople v Galloway, 54 NY2d 396, 399 [1981]).
The Supreme Court did not err in resentencing the defendant as a second violentfelony offender, as the sentence for the predicate violent felony was imposed not morethan 10 years before the commission of the felonies of which the defendant presentlystands convicted, excluding the periods during which he was incarcerated for thosecrimes (see Penal Law § 70.04 [1] [b] [iv], [v]; see also People vHunt, 243 AD2d 854, 855 [1997]).
The resentence imposed was excessive to the extent indicated herein (see Peoplev Suitte, 90 AD2d 80 [1982]). Dickerson, J.P., Leventhal, Hall and Miller, JJ.,concur.