PEOPLE v. SMITH

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

The PEOPLE, etc., Respondent, v. Baron SMITH, Appellant.

Decided: June 24, 2002

SANDRA J. FEUERSTEIN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and STEPHEN G. CRANE, JJ. Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered December 3, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review since he did not specify this ground in his motion to dismiss at trial (see CPL 470. 05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9), and we decline to reach the issue in the exercise of our interest of justice jurisdiction.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5];  People v. Hunt, 227 A.D.2d 570, 643 N.Y.S.2d 172).

 The prosecutor's comment in summation that “I do not have to prove whose bullet was the fatal shot” was improper.   Although the defense counsel's objection to that argument was erroneously overruled, the prosecutor subsequently corrected the error claiming that the fatal bullet came from either the defendant's gun or the gun of his accomplice, Amado Washington.   The Supreme Court also corrected the error in its final charge.

 The Supreme Court properly instructed the jury that, to convict the defendant of intentional murder, the People would have to show that the defendant acted in concert with Washington, and, acting in concert with Washington, shot the innocent third party with intent to kill Sean Phillips.

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