| People v Simpson |
| 2017 NY Slip Op 04474 [151 AD3d 762] |
| June 7, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cedric N. Simpson, Appellant. |
Lynn W. L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered February 3, 2015, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to adeterminate term of imprisonment of 19 years, to be followed by 5 years of postreleasesupervision, on the conviction of manslaughter in the first degree, and a concurrent definite termof incarceration of 1 year on the conviction of criminal possession of a weapon in the fourthdegree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of manslaughter in the first degree from adeterminate term of imprisonment of 19 years, to be followed by 5 years of postreleasesupervision, to a determinate term of imprisonment of 15 years, to be followed by 5 years ofpostrelease supervision; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the People failed todisprove the defense of justification (see CPL 470.05 [2]; People v Landri, 104 AD3d 791[2013]; People v Garguilio, 57AD3d 797, 798 [2008]). In any event, the evidence, when viewed in the light most favorableto the prosecution, was legally sufficient to disprove the defendant's justification defense beyonda reasonable doubt (see People vHuddleston, 101 AD3d 901 [2012]; People v Morrison, 94 AD3d 913, 914 [2012]; People v Almanzar, 57 AD3d 686,688 [2008]). The People also adduced legally sufficient evidence that the defendant intended toinflict serious physical injury upon the victim (see People v Serrano, 74 AD3d 1104, 1105-1106 [2010]; People v Wilson, 49 AD3d 673,674 [2008]; People v Bisono, 37AD3d 844 [2007]; People vGill, 20 AD3d 434, 434-435 [2005]). Moreover, upon our independent review of theevidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on the count ofmanslaughter in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant failed to preserve for appellate review his contention that the prosecutorcommitted misconduct in summation by denigrating the defense (see CPL 470.05 [2]; People v Choi, 137 AD3d 808,810 [2016]). In any event, any improper comments were not, either [*2]individually or collectively, so egregious as to deprive thedefendant of a fair trial (see People vAlphonso, 144 AD3d 1168, 1168-1169 [2016]; People v Baez, 137 AD3d 805, 806 [2016]; People v Pringle, 136 AD3d 1061,1063 [2016]). The defendant also objects to certain remarks in which the prosecutor commentedon his pre-arrest silence. While those remarks were improper (see People v Anderson, 142 AD3d713, 716 [2016]; see also People vWilliams, 25 NY3d 185, 190 [2015]), the Supreme Court provided a curative instructionas to those remarks, and it must be presumed that the jury followed that instruction (seePeople v Guzman, 76 NY2d 1, 7 [1990]; People v Williams, 123 AD3d 1152, 1154 [2014], affd 29NY3d 84 [2017]). Furthermore, defense counsel's failure to object to certain of the challengedsummation remarks did not constitute ineffective assistance of counsel (see People v Taylor, 1 NY3d 174[2003]; People v Benevento, 91 NY2d 708 [1998]; People v Lopez, 69 AD3d 958 [2010]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Balkin, J.P., Hall, Sgroi and Barros, JJ., concur.