Opinion
2011-11-1
The PEOPLE, etc., respondent,v.Darryl BROOKS, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, Suzanne D. O'Hare, and Gretchen Robinson of counsel), for respondent.
The defendant's challenge to the legal sufficiency of the evidence, raised in his pro se supplemental brief, is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ); People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1, we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered July 17, 2009, convicting him of robbery in the first degree and menacing in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that certain comments made by the prosecutor during summation were improper and, thus, deprived him of a fair trial, is unpreserved for appellate review ( see CPL 470.05[2] ), because he made only a general objection to one of the comments he now challenges ( see People v. Tonge, 93 N.Y.2d 838, 688 N.Y.S.2d 88, 710 N.E.2d 653; People v. Nunez, 82 A.D.3d 1128, 1129, 920 N.Y.S.2d 146), and did not object to the other comments he now challenges ( see People v. West, 86 A.D.3d 583, 584, 926 N.Y.S.2d 659; People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194). In any event, although some of the prosecutor's comments improperly mischaracterized the defense as questioning the honesty of eyewitnesses, the comments were not “so flagrant or pervasive as to deny the defendant a fair trial” ( People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95; see People v. Bajana, 82 A.D.3d at 1112, 919 N.Y.S.2d 194; People v. Rayford, 80 A.D.3d 780, 781, 916 N.Y.S.2d 603; People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660; People v. Hendrix, 60 A.D.3d 1081, 1082–1083, 876 N.Y.S.2d 154). Moreover, the Supreme Court instructed the jurors that they were the finders of fact, that the arguments of counsel were not evidence, and that they were to assess the witnesses's credibility ( see People v. Valerio, 70 A.D.3d 869, 894 N.Y.S.2d 157).
Defense counsel's failure to object to the improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel ( see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Bajana, 82 A.D.3d at 1112, 919 N.Y.S.2d 194). Moreover, defense counsel otherwise 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. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
MASTRO, J.P., ENG, BELEN and HALL, JJ., concur.