The People of the State of New York, Respondent, v. John Burns, Appellant

The People of the State of New York, Respondent, v John Burns, Appellant. [MAJORITY] Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered March 28, 1990, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to an indeterminate term of imprisonment of twenty-five years to life, unanimously affirmed. Defendant’s claim that the prosecutor erred in summation by inviting the jury to conduct an improper out-of-court experiment is unpreserved and meritless. The prosecutor’s invitation to the jury to measure fifteen seconds was a measured, common sense response to the defense attack on the ability of the eyewitness to make an identification in that amount of time. It is plain that no juror would have considered the viewing of another juror for fifteen seconds as a means of verifying that the eyewitness could see defendant at night under the circumstances indicated in the eyewitness’s testimony. (Compare, People v Brown, 48 NY2d 388.) We find no merit to the claim that the court abused its discretion by imposing the maximum sentence. Concur— Carro, J. P., Milonas, Rosenberger and Kupferman, JJ.