People v. Simser

People v Simser (2019 NY Slip Op 00313) People v Simser 2019 NY Slip Op 00313 Decided on January 16, 2019 Appellate Division, Second 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 January 16, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ. 2016-00279 (Ind. No. 3604/14) [*1]The People of the State of New York, respondent, v Joshua Simser, appellant. Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Diane Eisner of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alan Marrus, J.), rendered December 3, 2015, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that he was deprived of a fair trial due to allegedly improper remarks the prosecutor made during her opening statement and summation is without merit. The challenged comments either were fair comment on the evidence and the reasonable inferences to be drawn from the evidence, or otherwise did not deprive the defendant of a fair trial (see People v Ashwal, 39 NY2d 105, 109-110; People v Giddens, 163 AD3d 990, 991; People v Mieles, 161 AD3d 1196, 1197; People v King, 144 AD3d 1176, 1176-1177). The defendant's challenge to the Supreme Court's jury charge is unpreserved for appellate review, and, in any event, without merit (see People v Jones, 138 AD3d 541, 542; People v Bogan, 78 AD3d 855, 855-856; People v Brown, 209 AD2d 428, 428). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). The defendant's remaining contention is unpreserved for appellate review, and, in any event, without merit. LEVENTHAL, J.P., HINDS-RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court