| People v Flores |
| 2016 NY Slip Op 00015 [135 AD3d 415] |
| January 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jaquel Flores, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered March14, 2013, convicting defendant, after a jury trial, of gang assault in the second degree,and sentencing him, as a second felony offender, to a term of seven years, unanimouslyaffirmed. Judgments (same court and Justice), rendered June 19, 2013, as amendedDecember 4, 2013, convicting defendant, upon his pleas of guilty, of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of acontrolled substance in the third degree, and sentencing him, as a second felony offender,to an aggregate concurrent term of five years, unanimously modified, on the law, toreplace the second felony offender adjudications on the drug convictions withadjudications as a second felony drug offender, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The record supports a reasonable conclusion that the allegedcontradiction in a witness's testimony regarding the roles of the assailants wassatisfactorily explained (see People v Fratello, 92 NY2d 565, 574-575 [1998],cert denied 526 US 1068 [1999]). The prosecutor's clarifying questions werepermissible under the circumstances, and did not deprive defendant of a fair trial.
Defendant's challenge to the prosecutor's summation is unpreserved, and we declineto review it in the interest of justice. As an alternative holding, we find no basis forreversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept1992], lv denied 81 NY2d 884 [1993]). The challenged comments were fairresponses to the defense summations, and the court's curative instruction was sufficientto alleviate any prejudice.
As the People concede, because of defendant's predicate drug conviction, he shouldhave been adjudicated a second felony drug offender, rather than a second felonyoffender, on the drug convictions.
We perceive no basis for reducing any of the sentences. Concur—Friedman,J.P., Sweeny, Saxe and Moskowitz, JJ.