PEOPLE v. QUEZADA

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

The PEOPLE of the State of New York, Respondent, v. Rafael QUEZADA, Defendant-Appellant.

Decided: October 15, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, RICHTER, ABDUS-SALAAM, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Jennifer Eisenberg of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered May 1, 2006, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.

 The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's credibility determinations.   The People's witness consistently stated that defendant played a leading role in beating the victim to death, and the inconsistencies in his testimony were insignificant.

 Of defendant's claims of prosecutorial misconduct, the only one that is arguably preserved relates to the prosecutor's brief summation remark that defendant and his codefendant “know” they are guilty.   The court's curative instruction, which the jury is presumed to have followed (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ) was sufficient to prevent any prejudice, and the court properly exercised its discretion in declining to declare a mistrial or give an additional curative instruction.   Defendant's remaining assertions of prosecutorial misconduct are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we find that none of the claimed misconduct deprived defendant of a fair trial.

We perceive no basis for reducing the sentence.