PEOPLE v. FRASIER (2022)

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered May 1, 2018, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first and second degrees, and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 18 years, unanimously modified, on the law, to the extent of amending the sentence and commitment sheet to reflect that defendant was convicted of attempted assault in the first degree rather than assault in the first degree, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007]).  Moreover, we find that the evidence of defendant's guilt was overwhelming.  There is no basis for disturbing the jury's determinations regarding credibility and identification, notwithstanding minor inaccuracies in the description given by the victim.  The victim, who knew defendant, made a reliable identification, and his testimony was extensively corroborated by video surveillance videotapes showing defendant before and during the shooting.

Any error in admitting prior consistent statements by the victim was harmless.  “[P]rior consistent statements are notably less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court as out of it, and so credibility can be tested through cross-examination” (People v. Ludwig, 24 NY3d 221, 230 [2014]).

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133 [1997], lv denied 91 N.Y.2d 976 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119 [1992], lv denied 81 N.Y.2d 884 [1993]).

We perceive no basis for reducing the sentence.