Opinion
5312
February 8, 2005.
Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered March 22, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.
Before: Mazzarelli, J.P., Saxe, Ellerin, Williams and Sweeny, JJ., concur.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490). There is no basis for disturbing the jury's determinations concerning identification. The victim had a sufficient opportunity to observe defendant, and he provided a detailed and accurate description.
The court properly instructed the jury not to perform a contrived, unsupervised experiment, seeking to re-create the relative positioning of defendant and the victim during the crime, which was suggested by defense counsel in summation ( see People v. Stanley, 87 NY2d 1000; People v. Blunt, 273 AD2d 146, lv denied 95 NY2d 850).
Although the prosecutor's summation reference to a police photograph was improper, the court sustained an objection and issued a strong curative instruction that prevented any prejudice. The other summation remarks challenged on appeal were fair comment based upon the evidence ( see People v. Overlee, 236 AD2d 133, lv denied 91 NY2d 976).