| People v Witherspoon |
| 2008 NY Slip Op 01380 [48 AD3d 599] |
| February 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BillyWitherspoon, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered September 5, 2006, convicting him of operating a motor vehicle while under theinfluence of alcohol or drugs (two counts), aggravated unlicensed operation of a motor vehicle inthe first degree, and driving without a seat belt, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
The defendant's claim that the Justice who presided at his trial should have recused himself iswithout merit. Since no basis for disqualification pursuant to Judiciary Law § 14 waspresented, it was up to the discretion of the Justice to decide whether or not to recuse himself (see People v Rolle, 37 AD3d 624,624-625 [2007]; People v Daly, 20AD3d 542 [2005]). Based upon the record before us, we conclude that the Justice properlydeclined to recuse himself.[*2]
The defendant's contention that the prosecutor'ssummation deprived him of a fair trial is unpreserved for appellate review, as defense counselonly made general, unspecified objections (see CPL 470.05 [2]; People v Romero, 7 NY3d 911[2006]). In any event, a review of the challenged comments reveals that they were primarily faircomment on the evidence adduced at trial or responsive to defense counsel's summation (seePeople v McHarris, 297 AD2d 824 [2002]; People v Cariola, 276 AD2d 800 [2000]).Moreover, even if some of these comments arguably were improper, under the circumstances, thedefendant was not denied a fair trial (seePeople v Vallee, 21 AD3d 502 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Ritter, Dillon andCarni, JJ., concur.