PEOPLE v. BERRIOS (2005)

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered March 22, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning identification.   The victim had a sufficient opportunity to observe defendant, and he provided a detailed and accurate description.

 The court properly instructed the jury not to perform a contrived, unsupervised experiment, seeking to recreate the relative positioning of defendant and the victim during the crime, which was suggested by defense counsel in summation (see People v. Stanley, 87 N.Y.2d 1000, 642 N.Y.S.2d 620, 665 N.E.2d 190 [1996];  People v. Blunt, 273 A.D.2d 146, 709 N.Y.S.2d 560, lv. denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862 [2000] ).

 Although the prosecutor's summation reference to a police photograph was improper, the court sustained an objection and issued a strong curative instruction that prevented any prejudice.   The other summation remarks challenged on appeal were fair comment based upon the evidence (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).