| People v Salton |
| 2014 NY Slip Op 06002 [120 AD3d 838] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Salton, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), forappellant.
Richard A. Brown, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, andDaniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered October 6, 2010, convicting him of murder in the second degree,robbery in the first degree (four counts), and criminal possession of a weapon in thesecond degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Danielson, 9NY3d 342, 349 [2007]), we find that it was legally sufficient to establish thedefendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt of that crime was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The Supreme Court properly refused the defendant's request to charge manslaughterin the first degree as a lesser included offense of murder in the second degree. Viewingthe evidence in the light most favorable to the defendant (see People v Martin, 59NY2d 704 [1983]), there was no reasonable view of the evidence to support a findingthat the defendant intended to cause serious physical injury to the victim rather than tokill him (see People vMoreno, 16 AD3d 438 [2005]; People v Caimite, 306 AD2d 417[2003]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is largely unpreserved for appellate review(see CPL 470.05 [2]; People v Morency, 104 AD3d 877 [2013]; People v Rodney, 96 AD3d880 [2012]). In any event, the challenged remarks, for the most part, were faircomment on the evidence or were responsive to defense counsel's summation (see People v Crawford, 54AD3d 961 [2008]; People vApplewhite, 50 AD3d 1046 [2008]). Although one of the remarks wasimproper, it was not so egregious as to deprive the defendant of a fair trial (see People v Philbert, 60 AD3d698 [2009]; People vNisvis, 56 AD3d 574 [2008]).
The defendant's contention that certain counts charging him with robbery in the firstdegree were multiplicitous is unpreserved for appellate review (see People vCruz, 96 NY2d 857 [2001]), [*2]and, in any event,without merit (see People v Saunders, 290 AD2d 461 [2002]). Mastro, J.P.,Dillon, Miller and Maltese, JJ., concur.