People v. Berrios

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered March 22, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations concerning identification. The victim had a sufficient opportunity to observe defendant, and he provided a detailed and accurate description.

The court properly instructed the jury not to perform a contrived, unsupervised experiment, seeking to re-create the relative positioning of defendant and the victim during the crime, which was suggested by defense counsel in summation (see People v Stanley, 87 NY2d 1000 [1996]; People v Blunt, 273 AD2d 146 [2000], lv denied 95 NY2d 850 [2000]).

Although the prosecutor’s summation reference to a police photograph was improper, the court sustained an objection and issued a strong curative instruction that prevented any prejudice. The other summation remarks challenged on appeal were fair comment based upon the evidence (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Concur— Mazzarelli, J.E, Saxe, Ellerin, Williams and Sweeny, JJ.