PEOPLE v. TORRES

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

The PEOPLE of the State of New York, Respondent, v. Eddie TORRES, Defendant-Appellant.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Karen M. Kalikow of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Eldar Mayouhas of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered June 27, 2000, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to time served and 5 years' probation, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility.   Defendant's challenge to the sufficiency of the evidence supporting the element of intent to cause physical injury (Penal Law § 120.05[2] ) is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the requisite intent could be readily inferred from defendant's actions.

The prosecutor's summation did not deprive defendant of a fair trial.   The only summation claim that defendant has even arguably preserved is his challenge to the prosecutor's comment on the meaning of a plea of not guilty.   The remark in question was not prejudicial, and any prejudice was cured by the court's curative instruction (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).   Defendant's remaining summation claims are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them (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 [1992];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).