People v. Costa

221 A.D.2d 356, 634 N.Y.S.2d 6, 1995 N.Y. App. Div. LEXIS 11191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered February 20, 1992, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to establish that he committed murder in the second degree is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s challenge to the prosecution’s statements during summation are also unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, supra). In any event, the prosecutor did not interpose his personal opinion, rather his summation specifically left the case to the jury to decide the issues on the evidence and properly avoided irrelevant comments and inflammatory conclusions, focusing on the legitimate issues in the case. While the prosecutor’s reference to the reluctance of an eyewitness to speak to the police may have been improper since it had not been brought out at trial, any error was harmless (see, People v Crimmins, 36 NY2d 230, 242).

Finally, the defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80, 84). O’Brien, J. P., Joy, Altman and Florio, JJ., concur.