PEOPLE v. HOWARD

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Melvin HOWARD, Defendant-Appellant.

Decided: May 11, 2004

TOM, J.P., ANDRIAS, SAXE, SULLIVAN, MARLOW, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Lynetta M. St. Clair of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered November 29, 2000, convicting defendant, after a jury trial, of manslaughter in the first degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 25 years and 7 years on the manslaughter and weapon possession convictions to run consecutively to concurrent terms of 6 to 12 years and 4 to 8 years on the controlled substance convictions, unanimously affirmed.

The testimony elicited by the prosecutor about the reluctance of one of the eyewitnesses to testify, and the prosecutor's subsequent summation comments about that witness being scared, “were directed at the witness's testimonial role, rather than any implication that defendant had threatened her” (People v. Rivera, 234 A.D.2d 19, 20, 650 N.Y.S.2d 647, lv. denied 89 N.Y.2d 1040, 659 N.Y.S.2d 871, 681 N.E.2d 1318).   The witness's fear of testifying was relevant to issues presented at trial (see People v. Wortherly, 68 A.D.2d 158, 163-164, 416 N.Y.S.2d 594), and, in any event, the court did not permit the People to elicit any testimony about threats.

The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for reducing the sentence.