People v. Tracy

Appellate Division of the Supreme Court of New York

People v. Tracy

279 A.D.2d 406, 719 N.Y.S.2d 571, 2001 N.Y. App. Div. LEXIS 687

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

DecidedJanuary 25, 2001

StatusPublished

This text of 279 A.D.2d 406 (People v. Tracy) 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. Tracy, 279 A.D.2d 406, 719 N.Y.S.2d 571, 2001 N.Y. App. Div. LEXIS 687 (N.Y. Ct. App. 2001).

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Opinion

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered March 5, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury’s determinations concerning credibility.

The court properly exercised its discretion in denying defendant’s mistrial motion made after the prosecutor, in objecting to loud statements by defendant, remarked that defendant should take the stand instead of speaking from the defense table. The prosecutor made no effort to invite the jury to draw a negative inference, and, by directing the jury to disregard the prosecutor’s remark and by repeatedly instructing the jury that no inference could be drawn from the fact that defendant did not testify, the court prevented any prejudice (see, Fox v Mann, 71 F3d 66, 72-73). Defendant’s claim that the curative instruction contained in the court’s final charge was insufficiently specific is unpreserved (People v Whalen, 59 NY2d 273, 280; People v Santiago, 52 NY2d 865), and we decline to review it in the interest of justice.

We perceive no basis for reduction of sentence. Concur— Nardelli, J. P., Williams, Andrias, Wallach and Lerner, JJ.

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Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered March 5, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury’s determinations concerning credibility.

The court properly exercised its discretion in denying defendant’s mistrial motion made after the prosecutor, in objecting to loud statements by defendant, remarked that defendant should take the stand instead of speaking from the defense table. The prosecutor made no effort to invite the jury to draw a negative inference, and, by directing the jury to disregard the prosecutor’s remark and by repeatedly instructing the jury that no inference could be drawn from the fact that defendant did not testify, the court prevented any prejudice (see, Fox v Mann, 71 F3d 66, 72-73). Defendant’s claim that the curative instruction contained in the court’s final charge was insufficiently specific is unpreserved (People v Whalen, 59 NY2d 273, 280; People v Santiago, 52 NY2d 865), and we decline to review it in the interest of justice.

We perceive no basis for reduction of sentence. Concur— Nardelli, J. P., Williams, Andrias, Wallach and Lerner, JJ.

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Bluebook (online)

279 A.D.2d 406, 719 N.Y.S.2d 571, 2001 N.Y. App. Div. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tracy-nyappdiv-2001.

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