PEOPLE v. SEELER (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25[1], [3] ) and one count of robbery in the first degree (§ 160.15 [1] ).   Contrary to the contention of defendant, Supreme Court properly denied his request to charge manslaughter in the first degree (§ 125.20[1] ) and manslaughter in the second degree (§ 125.15[1] ) as lesser included offenses of murder in the second degree.   The evidence established that defendant shot the victim twice in the back of the head at close range, and there is thus no reasonable view of the evidence that defendant intended to cause serious physical injury to the victim but not to kill him (see § 125.20[1];  People v. Ramsey, 59 A.D.3d 1046, 872 N.Y.S.2d 789;  People v. Tyler, 43 A.D.3d 633, 634, 841 N.Y.S.2d 193, lv. denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884;  People v. Wheeler, 257 A.D.2d 673, 685 N.Y.S.2d 94, lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517;  see generally People v. Miller, 6 N.Y.3d 295, 302, 812 N.Y.S.2d 20, 845 N.E.2d 451;  People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).   There is also no reasonable view of the evidence that defendant engaged in reckless rather than intentional conduct (see § 125.15[1];  People v. Ware, 303 A.D.2d 173, 760 N.Y.S.2d 1, lv. denied 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423).

 We reject the further contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation.   The comments by the prosecutor concerning the prosecution witnesses were fair comment in response to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Pepe, 259 A.D.2d 949, 950, 689 N.Y.S.2d 310, lv. denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944).   We agree with defendant that the comment by the prosecutor that defendant's testimony was a “fabrication” was improper (see People v. Fiori, 262 A.D.2d 1081, 693 N.Y.S.2d 357;  People v. Bonilla, 170 A.D.2d 945, 566 N.Y.S.2d 422, lv. denied 77 N.Y.2d 904, 569 N.Y.S.2d 936, 572 N.E.2d 619).   That single instance of misconduct, however, did not deprive defendant of a fair trial (see generally People v. Moore, 41 A.D.3d 1149, 1151-1152, 837 N.Y.S.2d 480, lv. denied 9 N.Y.3d 879, 992, 842 N.Y.S.2d 791, 874 N.E.2d 758;  People v. Wilson, 34 A.D.3d 1276, 823 N.Y.S.2d 814, lv. denied 8 N.Y.3d 886, 832 N.Y.S.2d 498, 864 N.E.2d 628;  People v. Walker, 234 A.D.2d 962, 963, 652 N.Y.S.2d 441, lv. denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320).   Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: