Opinion
3527.
Decided May 4, 2004.
Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered April 4, 2002, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second and third degrees and assault in the second degree, and sentencing him, as a violent felony offender, to an aggregate term of 25 years to life, unanimously affirmed.
Laura R. Johnson, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), for respondent.
Before: Nardelli, J.P., Andrias, Sullivan, Ellerin, JJ.
The verdict was not against the weight of the evidence. On the contrary, there was overwhelming evidence that defendant intentionally killed the victim, including testimony from numerous eyewitnesses, forensic evidence, and defendant's statements. There is no basis for disturbing the jury's determinations concerning credibility ( see People v. Gaimari, 176 N.Y. 84, 94).
The court properly denied defendant's motion to suppress his statements. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761). The police officer's question "Where's all this blood coming from?" was not interrogation, but was intended to clarify the situation, including defendant's physical condition, where defendant's clothes were bloody and he had stated he had been shot ( see People v. Huffman, 41 N.Y.2d 29; People v. Goodings, 300 A.D.2d 50, lv denied 99 N.Y.2d 628).
The challenged portion of the prosecutor's summation generally constituted fair comment on the evidence, including a reasonable inference to be drawn therefrom, and the summation did not deprive defendant of a fair trial ( see People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). Contrary to defendant's argument, the prosecutor did not imply that defendant belonged to a gang. Although the summation included an isolated misstatement of fact, this defect does not warrant reversal in view of the overwhelming evidence of defendant's guilt.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.