People v. Downing

225 A.D.2d 391, 640 N.Y.2d 746, 640 N.Y.S.2d 746, 1996 N.Y. App. Div. LEXIS 2736

Opinion

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We reject defendant’s "masked repugnancy argument” based on his acquittal of the sale count (People v Fridic, 222 AD2d 220; People v Martinez, 165 AD2d 788, lv denied 78 NY2d 924).

Defendant’s contention that the prosecutor’s summation deprived him of a fair trial is largely unpreserved for appellate review as a matter of law (CPL 470.05 [2]; People v Balls, 69 NY2d 641), and we decline to review it in the interest of justice. In any event, the comments constituted a legitimate response to the summation of defense counsel. Finally, we find defendant’s sentence was not excessive. Concur — Murphy, P. J., Milonas, Rosenberger, Ross and Mazzarelli, JJ.