The People, etc., respondent, v. Rodney Green, appellant. (2011)

Argued—November 29, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered May 27, 2009, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, burglary in the third degree, tampering with physical evidence, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705), there was no reasonable view of the evidence to support a finding that the defendant intended to cause serious physical injury to the victim, rather than to kill her (see People v. Moreno, 16 AD3d 438;  People v. Maldonado, 5 AD3d 505, 506;  People v. DeLucia, 302 A.D.2d 280;  People v. Wheeler, 257 A.D.2d 673;  People v. Kelly, 221 A.D.2d 661, cert denied 517 U.S. 1200;  People v. Green, 143 A.D.2d 768, 770).   Accordingly, the Supreme Court correctly refused to charge manslaughter in the first degree as a lesser-included offense of murder in the second degree.

The defendant contends that certain remarks made by the People on summation constituted reversible error.   However, the remarks alleged to be inflammatory and prejudicial were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105;  People v. Gouveia, 88 AD3d 814), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396;  People v. Gouveia, 88 AD3d 814;  People v. Crawford, 54 AD3d 961), or harmless error (see People v. Crimmins, 36 N.Y.2d 230, 241–242;  People v. Hill, 286 A.D.2d 777, 778).

The sentence imposed was not excessive (see People v. Thompson, 60 N.Y.2d 513, 519;  People v. Suitte, 90 A.D.2d 80).

RIVERA, J.P., BALKIN, ENG and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court