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People v. Smith

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 1, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAMON SMITH, DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Joseph Dawson, J.), rendered November 12, 2008, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 25 years to life, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., McGuire, DeGrasse, Freedman, Richter, JJ.

43314C/05

Defendant did not preserve his claims that the prosecutor's summation misstated the law of justification and that the court should have given a curative instruction, and we decline to review them in the interest of justice. As an alternative holding, we find that the remarks at issue were fair comment on the evidence and a proper response to the arguments of defense counsel (see People v D'Alessandro, 184 AD2d 114, 119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor did not claim that the number of stab wounds inflicted by defendant automatically negated his justification defense as a matter of law. Instead, he highlighted the number of wounds in making a factual argument that the jury should reject defendant's self-defense claim.

We have considered and rejected defendant's ineffective assistance of counsel argument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100601

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