People v. Keogh

188 A.D.2d 312, 591 N.Y.S.2d 11, 1992 N.Y. App. Div. LEXIS 13544

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1992
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered August 29, 1990, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 8 to 24 years, unanimously affirmed.

Defendant’s claims of prosecutorial misconduct were not preserved for appellate review, and we decline to review them in the interest of justice. Were we to review, we would find them to be without merit. Since defense counsel had referred to defendant’s in-court demonstration of the stabbing incident to discredit the testimony of the People’s witness, the prosecutor was entitled to respond in kind (see, People v Sims, 162 AD2d 384, 385, lv denied 76 NY2d 990), by pointing out that, in its view, defendant’s version conveniently incorporated physical details mentioned during the medical examiner’s testimony in defendant’s presence. Under the circumstances, the prosecutor’s remarks were not of "such a character as would naturally and reasonably be interpreted by the jury as penalizing the defendant for exercising his right to testify, or to confront the People’s witnesses” (People v Wirts, 178 AD2d 165, 166, lv denied 79 NY2d 924). The prosecutor’s comments that defendant was the person "with the strongest motive to lie” and "the most interested witness in the case” also were fair responses to defense counsel’s attack on the credibility of the People’s main witness.

In light of defendant’s violent criminal history, the sentence imposed for this first degree manslaughter conviction was not an abuse of discretion.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Milonas, Wallach, Ross and Asch, JJ.