PEOPLE v. SILVA (2026)

Judgment, Supreme Court, New York County (Althea E.M. Drysdale, J.), rendered August 30, 2022, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree (two counts) and assault in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 71/212 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Lamont, 25 N.Y.3d 315, 318–319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015];  People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  There is no basis for disturbing the jury's credibility determinations.  The totality of the evidence regarding events before, during, and after the crime (see Matter of Tatiana N., 73 A.D.3d 186, 190–191, 899 N.Y.S.2d 21 [1st Dept. 2010]), including witness testimony and surveillance video footage, supports the jury's conclusion that when defendant commanded the shooter to “pop” the victim during an argument, he was aware that the shooter possessed a loaded firearm, and he intended for the shooter to fire his weapon at the victim and cause him to sustain physical injury (see People v. Grasso, 189 A.D.3d 486, 487, 136 N.Y.S.3d 289 [1st Dept. 2020], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 144, 167 N.E.3d 1279 [2021];  People v. Torres, 108 A.D.3d 474, 475, 969 N.Y.S.2d 462 [1st Dept. 2013], lv denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013];  People v. Christie, 55 A.D.3d 341, 342, 864 N.Y.S.2d 424 [1st Dept. 2008], lv denied 12 N.Y.3d 757, 876 N.Y.S.2d 708, 904 N.E.2d 845 [2009]).

Several of defendant's present challenges to the prosecutor's summation are unpreserved, and we decline to consider them in the interest of justice (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]).  As an alternative holding, we find that the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572 [1st Dept. 1997]).  In response to defense counsel's arguments challenging the credibility of the witnesses and the evidence of accomplice liability, the prosecutor permissibly offered common sense and evidence-based arguments that the witnesses were credible, contended that the witnesses had no reason to lie, and marshaled the evidence (see People v. Gonzalez, 298 A.D.2d 133, 133–134, 747 N.Y.S.2d 511 [1st Dept. 2002], lv denied 99 N.Y.2d 614 [2003];  People v. Bryant, 294 A.D.2d 221, 741 N.Y.S.2d 854 [1st Dept. 2002], lv denied 99 N.Y.2d 534, 752 N.Y.S.2d 594, 782 N.E.2d 572 [2002]).  The prosecutor's challenged remarks “constituted fair comment on the evidence and reasonable inferences to be drawn therefrom” (People v. Harkless, 238 A.D.3d 646, 647, 235 N.Y.S.3d 284 [1st Dept. 2025], lv denied 44 N.Y.3d 1028, 246 N.Y.S.3d 318, 272 N.E.3d 1155 [2025]).

We perceive no basis for reducing the sentence.