PEOPLE v. ALVARADO

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

The PEOPLE, etc., respondent, v. Juan ALVARADO, appellant.

Decided: June 28, 1999

SONDRA MILLER, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. Warren S. Hecht, Forest Hills, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, Patrick L. O'Connor, and Joan Yang of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered January 27, 1997, convicting him of murder in the second degree (two counts), attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction of intentional murder in the second degree and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a new trial on that count.

 Many of the defendant's contentions regarding remarks made by the prosecutor during summation are unpreserved for appellate review (see, CPL 470.05[2];  People v. Bruen, 136 A.D.2d 648, 523 N.Y.S.2d 883).   In any event, the prosecutor's statements did not exceed the broad bounds of rhetorical comment permissible in closing arguments (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885) and were either reasonably inferable from the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564) or fair responses to arguments raised by the defense counsel during summation (see, People v. Rivera, 158 A.D.2d 723, 552 N.Y.S.2d 171).

 The defendant contends that the proof of his guilt was entirely circumstantial and, therefore, the court committed reversible error in failing to give a circumstantial evidence charge.   The defendant is correct as to the count of intentional murder in the second degree and the matter is remitted to the Supreme Court, Queens County, for a new trial on that count.   However, as to the count of felony murder in the second degree, the prosecution's case rested on direct evidence which was employed together with circumstantial evidence to demonstrate the defendant's culpability.   It is well settled that the “moral certainty” language or its reasonable equivalent need not be charged where there is both direct and circumstantial evidence establishing the defendant's guilt (see, People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Johnson, 65 N.Y.2d 556, 493 N.Y.S.2d 445, 483 N.E.2d 120).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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