Opinion
No. 3404.
October 21, 2010.
Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered April 29, 2009, convicting defendant, after a jury trial, of resisting arrest and disorderly conduct, and sentencing him to concurrent terms of six months and five days, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the resisting arrest conviction to a term of 60 days of intermittent imprisonment to be served on weekends, and reducing the sentence for the disorderly conduct conviction to time served, and otherwise affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5) and for specifying the dates of incarceration pursuant to Penal Law § 85.00 (4) (iv).
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), for respondent.
Before: Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342, 348-349). There is no basis for disturbing the jury's credibility determinations, including its resolution of conflicts in testimony.
The court properly denied defendant's challenge for cause, since the prospective juror's responses provided a sufficient assurance of impartiality. Defendant's prosecutorial misconduct claims are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find that while some of the prosecutor's rhetoric was inappropriate, it did not deprive defendant of a fair trial. Defendant's remaining contentions are unavailing ( see People v Correa, 15 NY3d 213).
We find the sentence excessive to the extent indicated.