Opinion
2310.
November 25, 2003.
Judgment, Supreme Court, New York County (Michael Obus, J.), rendered September 12, 2002, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees and resisting arrest, and sentencing him, as a second violent felony offender, to concurrent terms of 10 years, 7 years and 1 year, with 5 years post-release supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction for criminal possession of a weapon in the third degree and dismissing that count of the indictment, and otherwise affirmed.
Gregory H. Mansfield, for Respondent.
Robert S. Dean, for Defendant-Appellant.
Before: Mazzarelli, J.P., Saxe, Williams, Lerner, Marlow, JJ.
In response to defense attacks on the credibility of the police witnesses, the prosecutor made proper arguments in support of their credibility and did not express any personal opinion (see People v. Bryant, 294 A.D.2d 221, lv denied 99 N.Y.2d 534; People v. Overlee, 236 A.D.2d 133, 144, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). Defendant's remaining challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v. Overlee, supra;People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). To the extent that any portions of the summation could be viewed as improper, we conclude that the court's curative actions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865).
The verdict convicting defendant of second-degree weapon possession was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490). The totality of the evidence, viewed in light of the presumption contained in Penal Law § 265.15(4), established that defendant possessed a weapon with the requisite unlawful intent.
Since defendant's third-degree weapon possession conviction is based on the same possession of the identical weapon underlying his second-degree weapon possession conviction, we vacate the third-degree possession conviction in the interest of justice (see People v. Riddick, 307 A.D.2d 821, 822).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.