Opinion
03-23-2017
The PEOPLE of the State of New York, Respondent, v. Davon WOODLEY, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York (Richard Tarlowe of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York (Richard Tarlowe of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
TOM, J.P., FRIEDMAN, MAZZARELLI, KAPNICK, KAHN, JJ.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered September 17, 2013, as amended September 30 and October 3, 2013, convicting defendant, after a jury trial, of attempted assault in the first degree and assault in the second degree, and sentencing him to an aggregate term of four years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The evidence established that defendant slammed the victim's head into a wall, and also fractured the victim's pelvis by stomping on it, and thereby evinced an intent to inflict serious physical injury.
Defendant's challenges to the prosecutor's summation are entirely unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The remarks at issue generally constituted permissible responses to defense counsel's summation, and to the extent there were improprieties, they did not deprive defendant of a fair trial (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 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 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] ).