Opinion
2014-11-19
The PEOPLE, etc., respondent, v. Chris TERRY, appellant.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Gamaliel Marrero of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Gamaliel Marrero of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered April 5, 2011, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 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).
The defendant's contention that certain remarks made by the prosecutor during summation were improper is unpreserved for appellate review. Defense counsel either did not object to the remarks at issue or made only a general objection ( seeCPL 470.05[2]; People v. Tonge, 93 N.Y.2d 838, 839–840, 688 N.Y.S.2d 88, 710 N.E.2d 653; People v. Rios, 105 A.D.3d 873, 962 N.Y.S.2d 351; People v. Kennedy, 101 A.D.3d 1045, 1046, 956 N.Y.S.2d 185). In any event, the contention is without merit, as the remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair response to arguments made by defense counsel in summation, fair comment upon the evidence, or otherwise did not deprive the defendant of a fair trial ( see People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273; People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Rios, 105 A.D.3d at 873, 962 N.Y.S.2d 351; People v. Kennedy, 101 A.D.3d at 1045, 956 N.Y.S.2d 185).
The defendant's contention, raised in his pro se supplemental brief, that the Allen charges ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) were coercive is unpreserved for appellate review due to his failure to object at trial ( seeCPL 470.05 [2]; People v. Auguste, 294 A.D.2d 371, 371–372, 741 N.Y.S.2d 700; People v. Ramkisson, 245 A.D.2d 393, 666 N.Y.S.2d 447). In any event, the charges were proper, as the Supreme Court did not attempt to persuade jurors to abandon their beliefs or convictions, did not attempt to coerce dissenting jurors to reach a particular verdict, and did not attempt to shame the jurors into reaching any verdict ( see People v. Muirhead, 110 A.D.3d 833, 834–835, 972 N.Y.S.2d 681; People v. Gonzalez, 70 A.D.3d 855, 856, 893 N.Y.S.2d 843; People v. McKenzie, 48 A.D.3d 594, 595, 852 N.Y.S.2d 217).
The Supreme Court's determination, outside of the defendant's presence, to seek clarification of what the deliberating jury wanted when it sent a note requesting to hear the court's instruction “on what the law is,” did not involve the giving of “information or instruction” within the meaning of CPL 310.30. “Moreover, this ministerial communication was wholly unrelated to the substantive legal or factual issues of the trial” (People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660; see People v. Torres, 174 A.D.2d 586, 587, 571 N.Y.S.2d 89, affd. 80 N.Y.2d 944, 590 N.Y.S.2d 867, 605 N.E.2d 354). In addition, the court immediately repeated the jury's request in the defendant's presence, before asking the jury for clarification. Thus, there is no merit to the defendant's pro se claim that he was improperly excluded from a material stage of his trial.
The defendant's contention that the Supreme Court improperly permitted Police Officer Dennis Steele to testify that he recognized the defendant from a “wanted” poster is waived, as the defense had elicited the same testimony on cross-examination ( see People v. Jean, 117 A.D.3d 875, 878, 985 N.Y.S.2d 669; People v. Stalter, 77 A.D.3d 776, 777, 909 N.Y.S.2d 516; People v. Grant, 54 A.D.3d 967, 864 N.Y.S.2d 134). The defendant's contention that the testimony of Officer Steele, Detective William Puskas, and Detective Frank Micelli improperly bolstered the complainant's identification of him is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Bevans, 84 A.D.3d 827, 921 N.Y.S.2d 869; People v. Melendez, 51 A.D.3d 1040, 1041, 861 N.Y.S.2d 64; People v. Sealy, 35 A.D.3d 510, 826 N.Y.S.2d 358). In any event, the testimony of Officer Steele and Detective Puskas was properly admitted “to explain police actions and the sequence of events leading to the defendant's arrest” (People v. Amaya, 103 A.D.3d 907, 908, 959 N.Y.S.2d 748; see People v. Bernardez, 85 A.D.3d 936, 938, 925 N.Y.S.2d 604; People v. Walker, 70 A.D.3d 870, 871, 894 N.Y.S.2d 156), while the testimony of Detective Micelli was properly admitted to enable the jury to evaluate whether the complainant had sufficient opportunity to observe the crime in order to report an accurate description of the perpetrator to the police ( see People v. Huertas, 75 N.Y.2d 487, 493, 554 N.Y.S.2d 444, 553 N.E.2d 992; People v. Bryan, 50 A.D.3d 1049, 1051, 856 N.Y.S.2d 227).
The defendant received the effective assistance of counsel ( see Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Stultz, 2 N.Y.3d 277, 283, 778 N.Y.S.2d 431, 810 N.E.2d 883). Defense counsel was not ineffective for failing to make arguments or motions that had little or no chance of success ( see People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Stultz, 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).
The defendant's remaining contention in his pro se supplemental brief is unpreserved for appellate review and, in any event, without merit ( see People v. Binning, 108 A.D.3d 639, 968 N.Y.S.2d 583).