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People v. Todd

Supreme Court of New York, Second Department

July 17, 2013

The People of the State of New York, respondent,
v.
Lavelle Todd, appellant. Ind. No. 1771-08

Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered February 14, 2011, convicting him of manslaughter in the first degree and assault in the first degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence was legally sufficient to disprove the defendant's justification defense (see People v Contes, 60 N.Y.2d 620, 621; People v Sedunova, 83 A.D.3d 965, 966-967; People v Brooks, 32 A.D.3d 616, 616-617). Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of that defense was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633; People v Sedunova, 83 A.D.3d at 967).

On cross-examination, the prosecutor asked the defendant whether he knew that a certain person had "turned [him] into the police." This question was clearly improper, but the court immediately intervened and subsequently delivered a strong and unequivocal curative instruction. These ameliorative actions ensured that the prosecutor's improper question did not deprive the defendant of a fair trial (see CPL 470.15[4][a]; People v Ross, 104 A.D.3d 878, 880; People v Rich, 78 A.D.3d 1200, 1201; People v Fluellen, 2 A.D.3d 286, 287). The defendant's contentions regarding the prosecutor's conduct on summation are unpreserved for appellate review inasmuch as he did not object to the comments he now claims were improper (see CPL 470.05[2]; People v Alexander, 100 A.D.3d 649, 649-650). In any event, those comments were either fair response to defense counsel's summation, fair comment on the evidence, or permissible rhetoric (see People v Ashwal, 39 N.Y.2d 105, 109-110; People v Whitehurst, 70 A.D.3d 1057, 1058).

The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

ENG, P.J., BALKIN, LEVENTHAL and MILLER, JJ., concur.


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