People v. Lopez

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PETER LOPEZ, Appellant

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

Date published: Nov 8, 1996

233 A.D.2d 886 (N.Y. App. Div. 1996)

649 N.Y.S.2d 862

Opinion

November 8, 1996.

Judgment unanimously affirmed.

Before: Present — Denman, P.J., Green, Wesley, Doerr and Boehm, JJ.

Memorandum:

Defendant argues that prosecutorial misconduct on summation requires reversal of his conviction of attempted murder in the second degree, criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, attempted assault in the first degree and menacing in the second degree. The prosecutor's comments concerning another crime that had occurred recently in Buffalo were improper. County Court, however, instructed the jury that the other incident had no bearing on this case and was not to be considered during deliberations ( see, People v Scott, 163 AD2d 855, lv denied 76 NY2d 944, 77 NY2d 843). The prosecutor also improperly commented concerning the failure of defendant to submit evidence in support of his defense. The court, however, adequately instructed the jury on the burden of proof ( see, People v Pizzaro, 184 AD2d 448, 449, lv denied 80 NY2d 908). The prosecutor's comments concerning the credibility of the chief prosecution witness were fair response to defense counsel's comments on summation ( see, People v Rivera, 158 AD2d 344, lv denied 76 NY2d 741). Although several of the prosecutor's comments were improper, the prosecutor's misconduct was not so pervasive or egregious as to deny defendant a fair trial ( see, People v Matta, 144 AD2d 1014, 1015, lv denied 73 NY2d 923).

The conviction of attempted murder in the second degree and attempted assault in the first degree is supported by sufficient evidence ( see, People v Bleakley, 69 NY2d 490, 495). Intent may be inferred from defendant's conduct and the surrounding circumstances ( see, People v Taylor, 163 AD2d 902, 903, lv denied 76 NY2d 944). Given the violent nature of the crimes, we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice ( see, CPL 470.15 [b]). (Appeal from Judgment of Erie County Court, D'Amico, J. — Attempted Murder, 2nd Degree.)