Opinion
11-30-2016
The PEOPLE, etc., respondent, v. Anthony ALPHONSO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Anna Kou of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Anna Kou of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donnelly, J.), rendered April 25, 2014, convicting him of assault in the second degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the prosecutor improperly questioned him about his prearrest silence during cross-examination and improperly commented on his prearrest silence to impeach his credibility during summation (see CPL 470.05[2] ; People v. Pringle, 136 A.D.3d 1061, 1062, 25 N.Y.S.3d 635 ). In any event, to the extent that the prosecutor's questions and remarks concerned the defendant's conduct after the incident, they were not improper (see People v. Pringle, 136 A.D.3d at 1062, 25 N.Y.S.3d 635; People v. Mulligan, 118 A.D.3d 1372, 1374, 988 N.Y.S.2d 354 ; People v. Vargas, 277 A.D.2d 475, 716 N.Y.S.2d 896 ; People v. Guzman, 259 A.D.2d 364, 365, 688 N.Y.S.2d 10 ). The defendant's contention that he was deprived of a fair trial by other improper remarks made by the prosecutor during her summation is also unpreserved for appellate review (see CPL 470.05[2] ; People v. Kinard, 96 A.D.3d 976, 977, 946 N.Y.S.2d 504 ). In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, and constituted fair response to arguments made by defense counsel in summation or fair comment on the evidence (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Galloway, 54 N.Y.2d 396, 399–401, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Barber, 133 A.D.3d 868, 871, 22 N.Y.S.3d 63 ). Moreover, contrary to the defendant's contention, any instances of prosecutorial misconduct during cross-examination and summation were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Pringle, 136 A.D.3d at 1062, 25 N.Y.S.3d 635; People v. Briskin, 125 A.D.3d 1113, 1122, 3 N.Y.S.3d 200 ; People v. Credle, 124 A.D.3d 792, 793, 998 N.Y.S.2d 466 ).
Defense counsel's failure to object to the challenged questions and summation remarks did not constitute ineffective assistance of counsel (see People v. Wragg, 26 N.Y.3d 403, 411–412, 23 N.Y.S.3d 600, 44 N.E.3d 898 ; People v. Hawley, 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ). The record reveals that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Cruz, 127 A.D.3d 987, 988, 6 N.Y.S.3d 644 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).