People v. Umonzor

210 A.D.2d 516, 620 N.Y.S.2d 1009, 1994 N.Y. App. Div. LEXIS 13168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered October 1, 1991, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was precluded from testifying as to his state of mind is without merit. Where a defendant’s state of mind is at issue, the defendant is entitled to testify concerning it (see, People v Rivera, 101 AD2d 981, 982, affd 65 NY2d 661). In the present case, although the trial court restricted the defendant’s testimony, the defendant was afforded ample opportunity to testify regarding his mental state.

Moreover, the challenged comments in the prosecutor’s summation were either within the bounds of permissible rhetorical comment, were responsive to the defendant’s summation, constituted fair comment on the evidence, or were fairly inferable from the evidence (see, People v Ashwal, 39 NY2d 105; People v Miller, 183 AD2d 790; People v Wilson, 173 AD2d 751).

Finally, there is no merit to the defendant’s argument that his sentence was excessive (see, People v Suite, 90 AD2d 80). Bracken, J. P., Balletta, Friedmann and Krausman, JJ., concur.