PEOPLE v. HOWARD

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

The PEOPLE, etc., respondent, v. Lionel HOWARD, appellant.

Decided: April 28, 2009

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, JOSEPH COVELLO, and RANDALL T. ENG, JJ. Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger 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 (Reichbach, J.), rendered November 14, 2006, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the adjudication of the defendant as a persistent violent felony offender;  as so modified, the judgment is affirmed.

 The supplemental instruction on intent given by the Supreme Court was a meaningful response which adequately conveyed the relevant legal principles (see People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93;  People v. Bryant, 13 A.D.3d 1170, 787 N.Y.S.2d 540;  People v. Wise, 204 A.D.2d 133, 134-135, 612 N.Y.S.2d 117;  People v. Fraser, 181 A.D.2d 425, 580 N.Y.S.2d 751;  People v. Barnes, 265 A.D.2d 169, 695 N.Y.S.2d 362;  People v. Jones, 229 A.D.2d 597, 646 N.Y.S.2d 146;  CPL 310.30), and did not shift the burden of proof (cf. Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 61 L.Ed.2d 39;  People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425).   Accordingly, defense counsel's failure to object to the supplemental charge did not deny the defendant the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Any prejudice suffered by the defendant from the improper summation comment by the prosecutor regarding extreme emotional disturbance was ameliorated by the court's instructions (see People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837;  People v. Rivera, 142 A.D.2d 614, 530 N.Y.S.2d 269), and did not deprive the defendant of a fair trial (see People v. Roopchand, 107 A.D.2d 35, 36, 485 N.Y.S.2d 332).   The defendant's remaining challenges to comments made by the prosecutor during summation are unpreserved for appellate review (see CPL 470.05[2] ).   In any event, either the challenged comments constituted fair comment on the evidence (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or any prejudice suffered by the defendant was ameliorated by the court's instructions (see People v. Svanberg, 293 A.D.2d at 555, 739 N.Y.S.2d 837), and did not deprive the defendant of a fair trial (see People v. Roopchand, 107 A.D.2d at 36, 485 N.Y.S.2d 332, affd. 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924).

 Although the Supreme Court improperly adjudicated the defendant a persistent violent felony offender (see Penal Law 70.02[1], 70.08[1][a] ), under the circumstances present here, resentencing is not warranted.   The Supreme Court noted that the adjudication did not change the applicable sentencing structure, heard argument referencing the correct minimum and maximum sentences for murder in the second degree, and properly considered the defendant's prior criminal history, the circumstances of the crimes charged, and the purpose of the penal sanction in rendering sentence (see People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864;  People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).   Accordingly, the adjudication is vacated, but the sentence remains.

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