People v. Brown

Decision Date27 December 2011
Citation90 A.D.3d 575,936 N.Y.S.2d 537,2011 N.Y. Slip Op. 09529
PartiesThe PEOPLE of the State of New York, Respondent, v. Thomas BROWN, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County, (Arlene R. Silverman, J.), rendered January 24, 2008, as amended April 11, 2008, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the third degree, and sentencing him to an aggregate term of 28 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations regarding credibility and identification. The testimony of the identifying eyewitness was corroborated by other evidence, including testimony from a cooperating accomplice.

Defendant's arguments about the court interjecting itself into the proceedings are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that defendant was not deprived of a fair trial. While some of the court's comments may have been inadvisable, there was nothing in the court's conduct that requires reversal.

The challenged portion of the prosecutor's summation did not shift the burden of proof. Instead, the prosecutor was properly responding to defendant's summation arguments concerning the cooperating accomplice's alleged motives to falsify. The prosecutor was entitled to refute those claims by arguing that they were implausible and unsupported by the evidence ( see e.g. People v. Sprinkle, 221 A.D.2d 269, 634 N.Y.S.2d 83 [1995], lv. denied 87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518 [1996] ). In any event, any prejudice was alleviated by the court's curative instructions.

The court properly imposed consecutive sentences. The murder and weapon possession were separate acts for sentencing purposes ( see Penal Law § 70.25 [2]; People v. Wright, 87 A.D.3d 229, 926 N.Y.S.2d 43 [2011], lv. granted 2011 N.Y. Slip Op. 78815[U], 2011 WL 2899328).

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ., concur.

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12 cases
  • People v. Bradley
    • United States
    • New York Supreme Court — Appellate Division
    • April 22, 2022
    ...victim's in-court identification. Defendant's arguments, however, are unpreserved for appellate review (see People v. Brown , 90 A.D.3d 575, 576, 936 N.Y.S.2d 537 [1st Dept. 2011], affd 21 N.Y.3d 739, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ; People v. Kennard , 160 A.D.3d 1378, 1380, 76 N......
  • People v. Brown
    • United States
    • New York Court of Appeals Court of Appeals
    • November 14, 2013
    ...sentences. In December 2011, the Appellate Division unanimously affirmed the judgment of conviction and sentence (90 A.D.3d 575, 936 N.Y.S.2d 537 [1st Dept.2011] ). The court concluded that consecutive sentences were properly imposed under Penal Law § 70.25(2) because the murder and weapon ......
  • People v. Ormejuste
    • United States
    • New York Supreme Court — Appellate Division
    • May 7, 2014
    ...In any event, the contested remarks were responsive to arguments and theories presented in the defense's summation ( see People v. Brown, 90 A.D.3d 575, 936 N.Y.S.2d 537,affd.21 N.Y.3d 739, 977 N.Y.S.2d 723, 999 N.E.2d 1168), were permissible rhetorical comment ( see People v. Ashwal, 39 N.......
  • People v. Brown
    • United States
    • New York Court of Appeals Court of Appeals
    • November 14, 2013
    ...sentences. In December 2011, the Appellate Division unanimously affirmed the judgment of conviction and sentence (90 A.D.3d 575, 936 N.Y.S.2d 537 [1st Dept.2011] ). The court concluded that consecutive sentences were properly imposed under Penal Law § 70.25(2) because the murder and weapon ......
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