Opinion
8803 Ind. 1205/12
03-26-2019
The PEOPLE of the State of New York, Respondent, v. Emmanuel CHERRY, Defendant-Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its resolution of any discrepancies in the four eyewitnesses' testimony. Defendant's intent to cause physical injury could be readily inferred from his conduct.Defendant's arguments concerning the People's summation are unpreserved (see People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ; People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). Any improprieties in the challenged remarks by the prosecutor were not so egregious as to deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 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] ).