| People v Prowse |
| 2009 NY Slip Op 01678 [60 AD3d 703] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 82—The People of the State of New York,Respondent, v John Prowse, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered February 27, 2007, convicting him of manslaughter in the second degree, vehicularmanslaughter in the second degree, assault in the second degree, vehicular assault in the seconddegree, driving while ability impaired, and a violation of Vehicle and Traffic Law § 1111(d) (1), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.[*2]
The County Court properly admitted into evidence at trialthe opinion testimony of a forensic toxicologist with respect to the effect that a certain amount ofcocaine would have on a person's ability to operate a motor vehicle, and as to whether the levelof cocaine present in a person's body would be higher four hours before a blood sample wasdrawn (see People v Lamont, 21AD3d 1129 [2005]; People v Van Sickle, 120 AD2d 897 [1986]). The forensictoxicologist's testimony regarding her qualifications and experience provided a sufficientfoundation for her subsequent opinion testimony (see People v Mack, 301 AD2d 863,864 [2003]). The County Court was not required to formally declare or certify the forensictoxicologist to be an expert witness (seePeople v Wagner, 27 AD3d 671, 672 [2006]).
Contrary to the defendant's contention, the County Court properly admitted an autopsyphotograph of the victim into evidence. The photograph was neither excessively gruesome norintroduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant (see People v Reyes, 49 AD3d565, 566-567 [2008]; People vAllan, 41 AD3d 727, 727-728 [2007]). Rather, the photograph was relevant to helpillustrate and corroborate the testimony of the deputy medical examiner, who performed theautopsy (see People v Reyes, 49 AD3d at 566-567; People v Allan, 41 AD3d at727-728; People v Clark, 37 AD3d487 [2007]; People v Allah, 13AD3d 639 [2004]).
The introduction of certain testimony elicited during the redirect examination of a forensicscientist did not constitute reversible error because the testimony was elicited after defensecounsel opened the door to the matter on cross examination (see People v Massie, 2NY3d 179, 184 [2004]; People v Melendez, 55 NY2d 445, 451-453 [1982]; People v Vines, 51 AD3d 827,828 [2008]; People v Craft, 36AD3d 1145, 1149 [2007]; People v Johnson, 305 AD2d 518 [2003]).
The factually incorrect comment made by the prosecutor during his summation that was thesubject of a specific objection by defense counsel was not sufficiently prejudicial to deprive thedefendant of a fair trial. With respect to the remaining challenged remarks, the defendant'scontention that the prosecutor denigrated the defense and denied him a fair trial is unpreservedfor appellate review, because the defendant either failed to raise any objection to those remarks,voiced a general objection without specifying the ground therefor, or failed to seek further reliefwhen an objection was sustained (see CPL 470.05 [2]; People v Crawford, 54 AD3d 961[2008]; People v Gill, 54 AD3d965 [2008], lv denied 11 NY3d 897 [2008]; People v Osorio, 49 AD3d 562, 563-564 [2008]). In any event,those remarks were either a fair response to the defense counsel's summation or within thebounds of rhetorical comment permissible in closing argument, and did not deny the defendant afair trial (see People v Galloway, 54 NY2d 396, 399 [1981]; People v Osorio, 49AD3d at 563-564; People vRobbins, 48 AD3d 711 [2008]; People v Barnes, 33 AD3d 811, 812 [2006]).[*3]
Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to prove the defendant's guilt beyond a reasonable doubt. Upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Santucci, Balkin and Eng, JJ., concur.