People v. Berrios

15 A.D.3d 224, 791 N.Y.S.2d 2, 2005 N.Y. App. Div. LEXIS 1279

Opinion

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered March 22, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations concerning identification. The victim had a sufficient opportunity to observe defendant, and he provided a detailed and accurate description.

The court properly instructed the jury not to perform a contrived, unsupervised experiment, seeking to re-create the relative positioning of defendant and the victim during the crime, which was suggested by defense counsel in summation (see People v Stanley, 87 NY2d 1000 [1996]; People v Blunt, 273 AD2d 146 [2000], lv denied 95 NY2d 850 [2000]).

Although the prosecutor’s summation reference to a police photograph was improper, the court sustained an objection and issued a strong curative instruction that prevented any prejudice. The other summation remarks challenged on appeal were fair comment based upon the evidence (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Concur— Mazzarelli, J.E, Saxe, Ellerin, Williams and Sweeny, JJ.