| People v Nunez |
| 2017 NY Slip Op 00732 |
| Decided on February 2, 2017 |
| 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 February 2, 2017
Sweeny, J.P., Acosta, Moskowitz, Kapnick, Kahn, JJ.
2981 2913/12
v
Roberto Nunez, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 26, 2013, as amended January 30, 2014, convicting defendant, after a jury trial, of three counts each of murder in the first and second degrees, and sentencing him, as a second violent felony offender, to an aggregate term of life without parole, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant's exculpatory testimony did not place the evidence in "equipoise," as defendant asserts. On the contrary, the jury could have reasonably found defendant's testimony incredible and disregarded it, while instead accepting the People's compelling circumstantial case.
The prosecutor's remarks in summation fell within the broad bounds of rhetorical comment permissible in closing argument (see People v Galloway, 54 NY2d 396, 399 [1981]). The People were entitled to argue that their case was strong, that defendant's testimony was incredible, and that defendant's status as an interested witness was one of the factors affecting his credibility. Nothing in the People's phrasing of these arguments was so inflammatory as to warrant reversal.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2017
CLERK