People v. Waller

239 A.D.2d 934, 661 N.Y.S.2d 818, 1997 N.Y. App. Div. LEXIS 6315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1997
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant contends that, in view of his acquittal of murder in the second degree and manslaughter in the first degree, the verdict convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree is inconsistent and repugnant. Because defendant failed to raise that contention before the jury was discharged, it is unpreserved for our review (see, People v Alfaro, 66 NY2d 985, 987; People v Satloff, 56 NY2d 745, 746, rearg denied 57 NY2d 674). We decline to exercise our power to reach that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Upon our review of the record, we conclude that the verdict is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). We reject defendant’s contention that prosecutorial misconduct on summation warrants reversal. The prosecutor’s comments were, for the most part, fair comment on the evidence, and, in any event, "any error was harmless in light of the overwhelming evidence of the defendant’s guilt and the court’s subsequent instruction, which served to cure any alleged prejudice” (People v Walker, 224 AD2d 559, 560, lv denied 88 NY2d 887). Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Himelein, J.—Manslaughter, 2nd Degree.) Present—Green, J. P., Pine, Lawton, Callahan and Fallon, JJ.