| People v Johnson |
| 2018 NY Slip Op 01617 [159 AD3d 833] |
| March 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Johnson, Appellant. |
Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (DanielLewis, J.), rendered July 2, 2013, as amended August 1, 2013, convicting him of murder in thesecond degree (two counts), attempted robbery in the first degree (two counts), attempted robberyin the second degree, criminal possession of a weapon in the second degree (two counts), andtampering with physical evidence (three counts), upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Richard L. Buchter, J.), of those branchesof the defendant's omnibus motion which were to suppress physical evidence and his statementsto law enforcement officials.
Ordered that the judgment, as amended, is affirmed.
Contrary to the defendant's contention, the verdict finding him guilty of both counts ofmurder in the second degree, while acquitting him of murder in the first degree, was not legallyrepugnant. "[A] verdict is repugnant only if it is legally impossible—under all conceivablecircumstances—for the jury to have convicted the defendant on one count but not theother" (People v Muhammad, 17NY3d 532, 539-540 [2011]; seePeople v DeLee, 24 NY3d 603, 608 [2014]). In determining whether a verdict is legallyrepugnant, the court reviews "the elements of the offenses as charged to the jury without regardto the proof that was actually presented at trial" (People v Muhammad, 17 NY3d at 542;see People v Tucker, 55 NY2d 1, 4 [1981]). "If there is a possible theory under which asplit verdict could be legally permissible, it cannot be repugnant, regardless of whether thattheory has evidentiary support in a particular case" (People v Muhammad, 17 NY3d at540; see People v DeLee, 24 NY3d at 608). Viewing the elements of the offenses ascharged to the jury here, the acquittal on the count of murder in the first degree did not negateany of the elements of the counts of murder in the second degree (see generally People v Harris, 98 AD3d420 [2012]). To the extent that the defendant contends that the verdict should not bepermitted to stand because of particular factual inconsistencies in it, his claim is without merit(cf. People v Muhammad, 17 NY3d at 545; People v Rayam, 94 NY2d 557[2000]; People v Bess, 142 AD3d1098, 1099 [2016]; People vChavez, 139 AD3d 1082, 1083 [2016]; People v Choi, 137 AD3d 808, 809 [2016]).
Contrary to the defendant's contention, he was not deprived of a fair trial because the [*2]prosecutor used electronic slides during summation to display, inquestion format, most of the elements of the charged crimes to the jury. The defendant does notassert that the questions set forth on the slides were inaccurate, and copies of the slides were notgiven to the jury to review during deliberations (see People v Baker, 14 NY3d 266, 273 [2010]; People vNash, 273 AD2d 696, 699 [2000]; People v Goodman, 190 AD2d 862, 863 [1993]).The slides were not improper (see People v Baker, 14 NY3d at 273). Moreover, theSupreme Court's instructions were sufficient to dispel any possibility that the jury would giveprecedence or place undue emphasis on the prosecutor's use of the slides (see id.). Jurorsare presumed to follow the legal instructions they are given (see id.; People v McManus, 150 AD3d762 [2017]; People v Tohom,109 AD3d 253, 268 [2013]). Additionally, to the extent that the prosecutor improperlyvouched for the credibility of one of the People's witnesses and displayed a slide withaccompanying text that highlighted the prosecutor's statement during summation, this error wasnot so egregious as to deprive the defendant of a fair trial (see People v Choi, 137 AD3dat 810; People v Tiro, 100 AD3d663 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are unpreserved for appellate review, and we decline to reach them in the exercise of ourinterest of justice jurisdiction. Balkin, J.P., Leventhal, Chambers and Miller, JJ., concur.