Majority
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered February 3, 2015, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 19 years, to be followed by 5 years of postrelease supervision, on the conviction of manslaughter in the first degree, and a concurrent definite term of incarceration of 1 year on the conviction of. criminal possession of a weapon in the fourth degree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of manslaughter in the first degree from a determinate term of imprisonment of 19 years, to be followed by 5 years of postrelease supervision, to a determinate term of imprisonment of 15 years, to be followed by 5 years of post-release supervision; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the People failed to disprove the defense of justification (see CPL 470.05 [2]; People v Landri, 104 AD3d 791 [2013]; People v Garguilio, 57 AD3d 797 , 798 [2008]). In any event, the evidence, when viewed in the light most favorable to the prosecution, was legally sufficient to disprove the defendant’s justification defense beyond a reasonable doubt
The defendant failed to preserve for appellate review his contention that the prosecutor committed misconduct in summation by denigrating the defense (see CPL 470.05 [2]; People v Choi, 137 AD3d 808 , 810 [2016]). In any event, any improper comments were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v Alphonso, 144 AD3d 1168 , 1168-1169 [2016]; People v Baez, 137 AD3d 805 , 806 [2016]; People v Pringle, 136 AD3d 1061 , 1063 [2016]). The defendant also objects to certain remarks in which the prosecutor commented on his pre-arrest silence. While those remarks were improper (see People v Anderson, 142 AD3d 713 , 716 [2016]; see also People v Williams, 25 NY3d 185 , 190 [2015]), the Supreme Court provided a curative instruction as to those remarks, and it must be presumed that the jury followed that instruction (see People v Guzman, 76 NY2d 1 , 7 [1990]; People v Williams, 123 AD3d 1152 , 1154 [2014], affd 29 NY3d 84 [2017]). Furthermore, defense counsel’s failure to object to certain of the challenged summation remarks did not constitute ineffective assistance of counsel (see People v Taylor, 1 NY3d 174 [2003]; People v Benevento, 91 NY2d 708 [1998]; People v Lopez, 69 AD3d 958 [2010]).
The sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80 [1982]).
Balkin, J.P., Hall, Sgroi and Barros, JJ., concur.
Cases cited
- People v. Landri 104 AD3d 791 p. 762
- People v. Huddleston 101 AD3d 901 p. 763
- People v. Morrison 94 AD3d 913 at 914 p. 763
- People v. Almanzar 57 AD3d 686 at 688 p. 763
- People v. Wilson 49 AD3d 673 at 674 p. 763
- People v. Bisono 37 AD3d 844 p. 763
- People v. Gill 20 AD3d 434 at 434-435 p. 763
- People v. Romero 7 NY3d 633 p. 763
- People v. Choi 137 AD3d 808 at 810 p. 763
- People v. Baez 137 AD3d 805 at 806 p. 763
- People v. Pringle 136 AD3d 1061 at 1063 p. 763
- People v. Anderson 142 AD3d 713 at 716 p. 763
- People v. Williams 25 NY3d 185 at 190 p. 763
- People v. Guzman 76 NY2d 1 at 7 p. 763
- People v. Williams 123 AD3d 1152 at 1154 p. 763
- People v. Williams 29 NY3d 84 p. 763
- People v. Taylor 1 NY3d 174 p. 763
- People v. Benevento 91 NY2d 708 p. 763
- People v. Suitte 90 AD2d 80 p. 763