The People, etc., respondent, v. Michael Cruz, appellant. (2014)

Argued—March 21, 2014

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered November 18, 2010, convicting him of assault in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of five years, plus a period of postrelease supervision of three years.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of five years, plus a period of postrelease supervision of three years, to a determinate term of imprisonment of three years, plus a period of postrelease supervision of three years;  as so modified, the judgment is affirmed.

The defendant's contention that the evidence of identification was legally insufficient to support his conviction is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 491–492).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt (see Jackson v. Virginia, 443 U.S. 307;  People v. Viera, 109 AD3d 844, 845;  People v. Morrison, 18 AD3d 887).   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

Contrary to the defendant's contention, the comments by the prosecutor during his summation constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105;  People v. Geddes, 258 A.D.2d 679, 681), were responsive to arguments and theories presented in the defense's summation (see People v. Galloway, 54 N.Y.2d 396;  People v. Herb, 110 AD3d 829), or were permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d at 109–110;  People v. Herb, 110 AD3d at 829).

Given the nature of the street encounter that led to the assault in this case, the 34–year–old defendant's lack of any prior criminal history, his gainful employment, and other factors favoring a sentence reduction, the sentence imposed was excessive to the extent indicated.

MASTRO, J.P., CHAMBERS, LOTT and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino Clerk of the Court