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People v. Comer

Appellate Division of the Supreme Court of New York, Second Department
Feb 1, 1988
137 A.D.2d 545 (N.Y. App. Div. 1988)

Opinion

February 1, 1988

Appeal from the Supreme Court, Kings County (Juviler, J.).


Ordered that the judgment is affirmed.

On appeal the defendant argues that the People failed to disprove his defense of justification beyond a reasonable doubt (see, People v Reyes, 116 A.D.2d 602, lv denied 67 N.Y.2d 949). The complainant, Charles Briggs, testified that the defendant attacked him with a razor after Briggs had verbally abused him. The defendant alleged that it was Briggs who initially attacked him with a stickball bat and he used the razor in self-defense. These contradictory versions of the incident placed in issue the credibility of these two witnesses.

Determination of the credibility of witnesses is a matter primarily for the jurors (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v Di Girolamo, 108 A.D.2d 755, lv denied 64 N.Y.2d 1133) due to their ability to see and hear the witnesses (see, People v Bigelow, 106 A.D.2d 448, 450). The account given by the complainant and obviously believed by the jury was sufficient to disprove the defense of justification beyond a reasonable doubt (see, People v Fleming, 134 A.D.2d 610).

The defendant's claim that it was error for the prosecutor to question him about his failure to contact the police with his exculpatory version of the incident is not preserved for appellate review (see, CPL 470.05; People v Harrington, 128 A.D.2d 726). It was wrong for the prosecutor to suggest that because the defendant was the person on trial, evidence of his past criminality could be used as proof of guilt (see, People v Resnick, 133 A.D.2d 237). However, the court gave prompt curative instructions and admonished the prosecutor to keep his summation within proper bounds. In light of the trial court's prompt and emphatic curative instructions, these and the other alleged errors committed during summation did not deprive the defendant of a fair trial (see, People v Galloway, 54 N.Y.2d 396; People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837) and, therefore, reversal is not warranted. Thompson, J.P., Rubin, Eiber and Sullivan, JJ., concur.


Summaries of

People v. Comer

Appellate Division of the Supreme Court of New York, Second Department
Feb 1, 1988
137 A.D.2d 545 (N.Y. App. Div. 1988)
Case details for

People v. Comer

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WALLEE COMER, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 1, 1988

Citations

137 A.D.2d 545 (N.Y. App. Div. 1988)

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