People v. Rivera

159 A.D.2d 255, 552 N.Y.S.2d 249, 1990 N.Y. App. Div. LEXIS 2366

Opinion

Supreme Court, New York County (Murray Mogel, J., at trial and sentence), rendered December 3, 1987, convicting defendant, after a jury trial, of murder in the second degree (felony murder) and sentencing him to an indeterminate term of imprisonment of from 25 years to life, unanimously affirmed.

While fleeing from an attempted robbery, defendant stabbed the intended victim’s friend who came to his aid. The evidence sufficiently established the underlying felony of attempted robbery to support the felony murder conviction. The testimony established that when defendant held the knife to the throat of Mandadiev, the intended robbery victim, he grabbed Mandadiev’s left hand, which held a shopping bag containing food. Under the facts and circumstances of this case, it was reasonable for the jury to conclude that defendant was attempting to rob Mandadiev. (See, People v Bracey, 41 NY2d 296, 301.)

The prosecutor’s statements on summation of "no testimony presented” were made in response to defendant’s summation comment and, in any event, were harmless in view of the overwhelming evidence presented against defendant. (See, People v Crimmins, 36 NY2d 230.) The prosecutor’s labeling of the defense argument as a "smokescreen” does not exceed the broad bounds of rhetorical comment permissible in a closing argument. (See, People v Galloway, 54 NY2d 396, 399.)

We are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction”, we perceive no abuse of discretion warranting a reduction in sentence. (People v Farrar, 52 NY2d 302, 305.) Concur—Sullivan, J. P., Carro, Rosenberger, Kassal and Ellerin, JJ.