Summary
holding that remarking on witness's lack of motive to lie is proper or does not constitute vouching
Summary of this case from Davis v. PooleOpinion
April 19, 1993
Appeal from the Supreme Court, Kings County (Hall, J.).
Ordered that the judgment is affirmed.
We find that the trial court properly refused to charge manslaughter in the first degree as a lesser-included offense of murder in the second degree, since there was no reasonable view of the evidence to support a finding that the defendant intended to cause serious physical injury rather than kill his victim (see, CPL 300.50; People v Glover, 57 N.Y.2d 61; People v Green, 56 N.Y.2d 427). Eyewitness testimony established that the defendant told his victim, "I have you now", shot at the victim three times at close range, and continued to shoot at the victim until he emptied his gun even though the victim had already collapsed (see, People v Pruitt, 190 A.D.2d 692; People v Rielly, 190 A.D.2d 695; People v Green, 143 A.D.2d 768; People v Ochoa, 142 A.D.2d 741; People v Morris, 141 A.D.2d 769).
Nor was the defendant deprived of a fair trial by the prosecutor's comments on summation (see, People v Roopchand, 65 N.Y.2d 837). The prosecutor's comments regarding the witnesses' lack of motive to lie was not improper given defense counsel's comments regarding the credibility of those witnesses (see, People v Rawlings, 144 A.D.2d 500; People v Torres, 121 A.D.2d 663). Thompson, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.