People v. Joaquin , 27 N.Y.S.3d 860 ( 2016 )

People v Joaquin (2016 NY Slip Op 02579)

People v Joaquin

2016 NY Slip Op 02579

Decided on April 5, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 5, 2016
Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.

728 2906/08

[*1]The People of the State of New York, Respondent,

v

Anibal Joaquin, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Melanie A. Sarver of counsel), for respondent.

Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered May 23, 2011, convicting defendant, after a jury trial, of attempted murder in the second degree and robbery in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 15 years, unanimously affirmed.

The court properly exercised its discretion when it declined to conduct an inquiry into whether jurors had engaged in premature deliberations, and we note that the court repeatedly reminded the jury that such deliberations are not permitted (see People v Mejias, 21 NY3d 73, 79 [2013]). The application for an inquiry was based on two jurors' alleged body language, which was observed by defense counsel but not the court, and from which the inference of premature deliberations was speculative in any event.

The particular portion of the prosecutor's summation to which defendant objected on the ground of "denigrating the defense" was generally responsive to defendant's summation, and does not warrant reversal. Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we similarly find no basis for reversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], [*2]lv denied 81 NY2d 884 [1993]). Any improprieties were harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK