People v. Taylor

197 A.D.2d 841, 602 N.Y.S.2d 255, 1993 N.Y. App. Div. LEXIS 9191

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from his conviction of attempted murder in the second degree (two counts) and criminal possession of a weapon in the third degree. He contends that prosecutorial misconduct and an erroneous jury instruction deprived him of a fair trial. Neither contention has merit.

The trial court properly instructed the jury that evidence of flight has limited probative value as an indication of guilt (see, People v Yazum, 13 NY2d 302, 304). Defendant was not prejudiced by the prosecutor’s improper references to the failure of defendant and his codefendants to come forward with evidence (see, People v Alls, 195 AD2d 952). Although the prosecutor also improperly commented during summation that defendant’s testimony was a fabrication and lie, those comments were not so egregious that defendant was denied a fair trial (see, People v Plant, 138 AD2d 968, lv denied 71 NY2d 1031). Lastly, the prosecutor’s use, for demonstrative purposes, of a shotgun similar in model and make to a shotgun purchased by defendant was not improper. Any variation affects the weight, not the admissibility, of such evidence (see, People v Mariner, 147 AD2d 659, lv denied 74 NY2d 666). (Appeal from Judgment of Erie County Court, Drury, J.—Attempted Murder, 2nd Degree.) Present—Denman, P. J., Green, Balio, Fallon and Boehm, JJ.