Opinion
4634 Ind. 971/14
06-11-2019
The PEOPLE of the State of New York, Respondent, v. Darryl BROWN, Defendant–Appellant.
Koehler & Isaacs, LLP, New York (Joey Jackson of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Koehler & Isaacs, LLP, New York (Joey Jackson of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Richter, J.P., Gische, Kapnick, Kahn, Kern, JJ.
Upon remittitur from the Court of Appeals for determination of undecided issues ( 33 N.Y.3d 316, 102 N.Y.S.3d 143, 125 N.E.3d 808, 2019 N.Y. Slip Op. 03529, 2019 WL 1995501 [2019] ), judgment, Supreme Court, Bronx County (Robert A. Neary, J.), rendered November 2, 2016, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 18 years, unanimously affirmed.
Defendant, who failed to object during the summation and who also declined any remedy after making a belated postsummation objection, failed to preserve his claim that the prosecutor committed misconduct by arguing to the jury that justification was not "a part of this case," after the court had declined to give the jury an instruction to that effect, and we decline to review it in the interest of justice. As an alternative holding, we find that the challenged remarks did not deprive defendant of a fair trial (see People v. Rodriguez, 52 A.D.3d 399, 860 N.Y.S.2d 523 [1st Dept. 2008], lv denied 11 N.Y.3d 834, 868 N.Y.S.2d 609, 897 N.E.2d 1093 [2008] ; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
Defendant's contention that the court sentenced him on the basis of misinformation is not supported by the record, and we perceive no basis for reducing the sentence.