People v. Nunez

Appellate Division of the Supreme Court of New York

People v. Nunez

2017 NY Slip Op 732, 147 A.D.3d 423, 45 N.Y.S.3d 794

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 2017

Docket2981 2913/12

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 732 (People v. Nunez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Nunez, 2017 NY Slip Op 732, 147 A.D.3d 423, 45 N.Y.S.3d 794 (N.Y. Ct. App. 2017).

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Opinion

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 26, 2013, as amended January 30, 2014, convicting defendant, after a jury trial, of three counts each of murder in the first and second degrees, and sentencing him, as a second violent felony offender, to an aggregate term of life without parole, unanimously affirmed.

Defendant’s legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant’s exculpatory testimony did not place the evidence in “equipoise,” as defendant asserts. On the contrary, the jury could have reasonably found defendant’s testimony incredible and disregarded it, while instead accepting the People’s compelling circumstantial case.

The prosecutor’s remarks in summation fell within the broad *424 bounds of rhetorical comment permissible in closing argument (see People v Galloway, 54 NY2d 396, 399 [1981]). The People were entitled to argue that their case was strong, that defendant’s testimony was incredible, and that defendant’s status as an interested witness was one of the factors affecting his credibility. Nothing in the People’s phrasing of these arguments was so inflammatory as to warrant reversal.

We perceive no basis for reducing the sentence.

Concur— Sweeny, J.P., Acosta, Moskowitz, Kapnick and Kahn, JJ.

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Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 26, 2013, as amended January 30, 2014, convicting defendant, after a jury trial, of three counts each of murder in the first and second degrees, and sentencing him, as a second violent felony offender, to an aggregate term of life without parole, unanimously affirmed.

Defendant’s legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant’s exculpatory testimony did not place the evidence in “equipoise,” as defendant asserts. On the contrary, the jury could have reasonably found defendant’s testimony incredible and disregarded it, while instead accepting the People’s compelling circumstantial case.

The prosecutor’s remarks in summation fell within the broad *424 bounds of rhetorical comment permissible in closing argument (see People v Galloway, 54 NY2d 396, 399 [1981]). The People were entitled to argue that their case was strong, that defendant’s testimony was incredible, and that defendant’s status as an interested witness was one of the factors affecting his credibility. Nothing in the People’s phrasing of these arguments was so inflammatory as to warrant reversal.

We perceive no basis for reducing the sentence.

Concur— Sweeny, J.P., Acosta, Moskowitz, Kapnick and Kahn, JJ.

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Bluebook (online)

2017 NY Slip Op 732, 147 A.D.3d 423, 45 N.Y.S.3d 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nunez-nyappdiv-2017.

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