Opinion
2012-12-12
The PEOPLE, etc., respondent, v. Frank RYER, appellant.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered November 30, 2009, as amended December 1, 2009, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
The defendant's contention that he was denied a fair trial by certain remarks and questions posed by the trial court to various witnesses is without merit. None of the court's questions or remarks prevented the jury from arriving at an impartial verdict based upon the evidence presented. The court kept the proceedings within the confines of the issues and encouraged clarity in the development of proof ( see People v. Moulton, 43 N.Y.2d 944, 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243;People v. DeJesus, 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 369 N.E.2d 752). Although certain of the court's comments during the course of the proceedings would have been better left unsaid, the defendant was not denied a fair trial by those remarks ( see People v. Moulton, 43 N.Y.2d at 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243;People v. Pittam, 23 A.D.3d 412, 413, 804 N.Y.S.2d 778;People v. Smalls, 293 A.D.2d 500, 739 N.Y.S.2d 630).
The defendant's arguments regarding alleged prosecutorial misconduct during summation are without merit. The challenged remarks either constituted fair comment on the evidence, were responsive to defense counsel's summation ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Smith, 94 A.D.3d 1023, 942 N.Y.S.2d 375;People v. Lawton, 81 A.D.3d 663, 664, 915 N.Y.S.2d 879), or constituted harmless error ( see People v. Kinard, 96 A.D.3d 976, 946 N.Y.S.2d 504;People v. Mullings, 88 A.D.3d 745, 745–746, 930 N.Y.S.2d 279;People v. Gadsden, 82 A.D.3d 902, 903, 918 N.Y.S.2d 201).
The sentence imposed was not excessive ( People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).
*914The defendant's remaining contentions are unpreserved for appellate review, and, in any event, without merit.