Opinion
11-18-2015
The PEOPLE, etc., respondent, v. Laval ELLIS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and Melissa Horlick of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and Melissa Horlick of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Arieh Schulman of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered September 9, 2008, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the jury verdict was against the weight of the evidence. 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; 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). Contrary to the defendant's contention, the fact that he was acquitted of murder in the second degree did not undermine the weight of the evidence supporting the verdict convicting him of criminal possession of a weapon in the second degree (see People v. Mazyck, 118 A.D.3d 728, 987 N.Y.S.2d 95; see also People v. Abraham, 22 N.Y.3d 140, 146–147, 978 N.Y.S.2d 723, 1 N.E.3d 797; People v. Rayam, 94 N.Y.2d 557, 562–563, 708 N.Y.S.2d 37, 729 N.E.2d 694; People v. Alcindor, 118 A.D.3d 621, 988 N.Y.S.2d 619).
The defendant's claim that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review (see People v. Herring, 119 A.D.3d 958, 958–959, 989 N.Y.S.2d 883; People v. Alleyne, 114 A.D.3d 804, 805, 979 N.Y.S.2d 845), and we decline to review it in the interest of justice. Moreover, contrary to the defendant's contention, defense counsel's failure to object to the challenged summation remarks did not constitute ineffective assistance of counsel (see People v. Stevenson, 129 A.D.3d 998, 11 N.Y.S.3d 646; People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147; People v. Brown, 106 A.D.3d 754, 755, 963 N.Y.S.2d 409; People v. Torres, 72 A.D.3d 709, 709, 900 N.Y.S.2d 89). The record reveals that defense counsel provided meaningful representation (see People v. Taylor, 1 N.Y.3d 174, 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Williams, 123 A.D.3d 1152, 1154, 997 N.Y.S.2d 499).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
RIVERA, J.P., DILLON, CHAMBERS and LaSALLE, JJ., concur.