People v. Hunter

• Decision Date: 28 March 2014
• Citation: 982 N.Y.S.2d 664,115 A.D.3d 1330,2014 N.Y. Slip Op. 02179
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher D. HUNTER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1330
982 N.Y.S.2d 664
2014 N.Y. Slip Op. 02179

The PEOPLE of the State of New York, Respondent,
v.
Christopher D. HUNTER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

March 28, 2014.

[982 N.Y.S.2d 665]

William G. Pixley, Rochester, for Defendant–Appellant.

Christopher D. Hunter, Defendant–Appellant pro se.

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ). We reject defendant's contention that he was denied a fair trial based on comments by the prosecutor during summation concerning the defense of extreme emotional disturbance and Supreme Court's ruling in response to his objection to those comments. We agree with defendant that, in making its ruling, the court improperly stated that “mercy” was an element of that defense ( see§ 125.25 [1][a] ). We note, however, that the court thereafter properly instructed the jury on the statutory elements of the defense and properly stated the fundamental legal principles applicable thereto. We conclude that the isolated misstatement by the court was satisfactorily corrected by the court's proper jury instructions ( see generally People v. Higgins, 188 A.D.2d 839, 841, 591 N.Y.S.2d 612,lv. denied81 N.Y.2d 972, 598 N.Y.S.2d 773, 615 N.E.2d 230).

Contrary to defendant's further contention, we conclude that the prosecutor's comments during summation concerning the lack of mercy shown by defendant toward the victim were a fair response to defense counsel's summation ( see

[982 N.Y.S.2d 666]

People v. Ali, 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277,lv. denied18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128). “Even assuming, arguendo, that the prosecutor's comments were beyond [the broad bounds of rhetorical comment permissible], we conclude that they were not so egregious as to deprive defendant of a fair trial” (People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249,lv. denied19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768).

We reject defendant's contention that he was denied the right to be present during a material stage of the trial. Here, in his omnibus motion, defendant sought a ruling to preclude the People from admitting evidence of defendant's prior convictions and bad acts, while the People, pursuant to Sandoval and Mol...