People v. Desmond

125 A.D.2d 585, 510 N.Y.S.2d 6, 1986 N.Y. App. Div. LEXIS 62877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1986
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered July 10, 1984, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the trial evidence in a light most favorable to the People, as we must, the People presented evidence sufficient to disprove the defense of justification beyond a reasonable doubt. In particular, one of the witnesses to the incident testified that she could clearly see the victim’s hands and they were empty. The defendant’s contention that the Trial Judge improperly submitted the lesser included offense of manslaughter in the second degree has not been preserved for our review since the defendant did not properly object to this portion of the charge.

The defendant contends that the prosecutor made several improper comments during his summation and asked improper questions during the cross-examination of the defendant and his witnesses. It was improper for the prosecutor to ask a defense witness if he was being paid by the defendant for his testimony, and for the prosecutor to refer to this during his summation. Although this misconduct should not be repeated, under the circumstances of this case it did not deny the defendant a fair trial. Weinstein, J. P., Rubin, Kooper and Sullivan, JJ., concur.