| People v Silva |
| 2016 NY Slip Op 00123 [135 AD3d 498] |
| January 12, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Santo Carrero Silva, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered July 2,2013, convicting defendant, after a jury trial, of murder in the second degree and criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of20 years to life, respectively, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibilitydeterminations, including its resolution of any inconsistencies in testimony. Defendant'sjustification defense was based entirely on his own statements, and his account of theactual shooting was generally contradicted by physical evidence, including medicalevidence as to the trajectory of the bullet that killed the deceased. The evidenceestablished an intentional killing, committed for revenge.
The court properly exercised its discretion in admitting two autopsy photographs,showing gunshot wounds in the front and back of the victim's heart, to corroborate anexpert's testimony that the entry and exit wounds were at about the same height,indicating that the bullet's trajectory was approximately parallel to the floor. Thisevidence was highly probative in contradicting defendant's statement that he had shot thevictim at a downward angle, and the probative value was not substantially outweighed byany prejudice resulting from the gruesome nature of the photos (see People vStevens, 76 NY2d 833, 836 [1990]). The trajectory of the bullet was a contestedissue, and the photos were not cumulative to the expert's testimony.
Defendant's challenges to the prosecutor's summation are unpreserved, and wedecline to review them in the interest of justice. As an alternative holding, we find nobasis for reversal, since any improprieties in the summation did not rise to the level ofreversible error (see People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept1992], lv denied 81 NY2d 884 [1993]; People v Overlee, 236 AD2d 133[1st Dept 1997], lv denied 91 NY2d 976 [1998]). We have considered andrejected defendant's claim that his counsel rendered ineffective assistance by failing toobject to the challenged parts of the summation (see People v Cass, 18 NY3d 553, 564 [2012]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Friedman, Gische and Kapnick, JJ.