People v. Cherry
| Decision Date | 11 July 2018 |
| Docket Number | Ind. No. 182/12,2014–10909 |
| Citation | 163 A.D.3d 706,81 N.Y.S.3d 123 |
| Parties | The PEOPLE, etc., respondent, v. Luis A. CHERRY, appellant. |
| Court | New York Supreme Court — Appellate Division |
163 A.D.3d 706
81 N.Y.S.3d 123
The PEOPLE, etc., respondent,
v.
Luis A. CHERRY, appellant.
2014–10909
Ind. No. 182/12
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 13, 2018
July 11, 2018
Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Eric C. Washer of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered November 5, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of murder in the second degree and the sentence imposed thereon; as so modified, the judgment is affirmed, and a new trial is ordered on the count of the indictment charging the defendant with murder in the second degree.
In October 2010, the defendant killed the victim on the doorstep of the victim's residence by shooting him once in the head. The defendant later admitted to the police that he had gone to the victim's residence, armed with a loaded gun, intending to kill the victim. The defendant also told the police that after he pointed the gun at the victim, the victim grabbed the gun and the two men struggled for it. According to the defendant, the gun "went off" while the defendant was trying to pull back his hand with his finger on the trigger. The defendant said that he did not intend to pull the trigger. Although the defendant told the police that he had gone to the victim's residence only because another person had threatened to kill him
and his mother if he did not kill the victim, the defendant did not raise a duress defense at trial. At trial, the Supreme Court declined the defendant's request that the charge of manslaughter in the second degree (reckless manslaughter) be submitted to the jury as a lesser included offense of murder in the second degree (intentional murder). The defendant was convicted of murder in the second degree and two counts of criminal possession of a weapon in the second degree.
On appeal, the defendant contends that the prosecutor deprived him of a fair trial by making improper comments to the jury and by introducing evidence and eliciting testimony that was irrelevant to the issues at trial and was intended only to evoke sympathy for the victim and his family. The defendant's challenges to the propriety of the prosecutor's conduct are, for the most part, unpreserved for appellate review (se...
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