| People v Bryan |
| 2008 NY Slip Op 08334 [55 AD3d 921] |
| October 28, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EvertonBryan, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Shulamit RosenblumNemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered November 2, 2006, convicting him of criminal possession of a controlled substance in thefourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecutor improperly cross-examined a defense witness abouthis failure to come forward with exculpatory information at an earlier date is without merit. Theprosecutor laid the proper foundation pursuant to People v Dawson (50 NY2d 311 [1980])before questioning that witness.
The defendant's claim regarding the prosecutor's failure to lay a proper foundation beforecross-examining another defense witness concerning her failure to come forward with exculpatoryinformation is not preserved for appellate review. After the prosecutor questioned the witness, the courtdelivered a curative instruction (see People v Ross, 262 AD2d 429 [1999]), the sufficiency ofwhich the defendant did not challenge. In any event, the evidence of the defendant's guilt wasoverwhelming, and there is no significant probability that the verdict would have been different absentthe asserted error (see People v Crimmins, 36 NY2d 230, 242 [1975]). The prosecutor'simproper impeachment of this witness based on prior arrests was also harmless error (see People vMiller, 91 NY2d 372 [1998]; People v Munquia, 23 AD3d 583 [2005]).
The defendant's contentions regarding the prosecutor's summation, to the extent the [*2]prosecutor allegedly shifted the burden of proof and gave his personalopinion as to the credibility of defense witnesses, are unpreserved for appellate review, and we declineto review them in the exercise of our interest of justice jurisdiction. The defense attorney either failed toobject or raised only general objections to the contested remarks (see CPL 470.05 [2];People v Dick, 48 AD3d 697 [2008]; People v Rivera, 19 AD3d 620 [2005]). Withregard to the defendant's remaining challenge to the prosecutor's summation comments, which ispreserved for appellate review, any error was harmless (see People v Crimmins, 36 NY2d230 [1975]).
The defendant further argues that the trial court erred in failing to instruct the jury on the defense oftemporary innocent possession. However, there was no reasonable view of the evidence upon whichthe jury could have found that the defendant's possession of cocaine was innocent (see People vBanks, 76 NY2d 799 [1990]; People v Hawkins, 258 AD2d 472 [1999]; People vWilson, 228 AD2d 708 [1996]).
We reject the defendant's contention that the trial court's Allen charge (see Allen vUnited States, 164 US 492 [1896]) was coercive and unbalanced. A review of the charge as awhole reveals that it was essentially neutral, directed at the jurors in general, and did not coerce them toreach a verdict or achieve a particular result (see People v Ramirez, 223 AD2d 656 [1996]).The court also provided a meaningful response to a note from the jury (see CPL 310.30;People v Malloy, 55 NY2d 296 [1982], cert denied 459 US 847 [1982]).
The defendant's contention, in point two of his brief, concerning his request for an expanded chargeon voluntary and knowing possession is without merit, and the defendant's remaining contentions areunpreserved for appellate review. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.