| People v Wright |
| 2009 NY Slip Op 04095 [62 AD3d 916] |
| May 19, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kirkland Wright, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered October 10, 2006, convicting him of attempted robbery in the first degree (twocounts), attempted robbery in the second degree, criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofthe charges of which he was convicted is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), there existed a"valid line of reasoning and permissible inferences [which] could lead a rational person to theconclusion reached by the fact finder on the basis of the evidence at trial" (People v Elmore, 49 AD3d 778,778 [2008] [internal quotation marks omitted]; see People v Williams, 84 NY2d 925,926 [1994]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]; People v Romero,7 NY3d 633, 642-643 [2006]).
The defendant's argument that certain questions posed by the prosecutor to defense witnesseswere improper inasmuch as they were designed to elicit irrelevant evidence is unpreserved forappellate review because the defendant either failed to object, or upon having his objectionsustained, failed [*2]to seek further relief (see CPL470.05 [2]; People v Jones, 46AD3d 840 [2007]; People vBillups, 41 AD3d 492, 493 [2007]). In any event, to the extent that the questions wereimproper, the prosecutor's misconduct was "not so flagrant or pervasive as to deny the defendanta fair trial" (People v Almonte, 23AD3d 392, 394 [2005]; see Peoplev Kadry, 30 AD3d 440 [2006]; People v Peterson, 186 AD2d 231, 232-233[1992]; cf. People v Liverpool, 35AD3d 506 [2006]; People v Brown, 30 AD3d 609, 610 [2006]; People vWalters, 251 AD2d 433, 434-435 [1998]). Accordingly, reversal is not warranted on thisground (see People v White, 196 AD2d 641 [1993]; People v Morales, 168AD2d 85, 90 [1991]; People v Roopchand, 107 AD2d 35, 36 [1985], affd 65NY2d 837 [1985]).
Contrary to the defendant's contention, the People laid the proper foundation prior toquestioning his alibi witness with respect to her delay in coming forward with exculpatoryevidence (see People v Miller, 89 NY2d 1077, 1079 [1997]; People v Dawson,50 NY2d 311, 321 [1980]; People v Stokes, 282 AD2d 553 [2001]). The alibiwitness testified that she met with the defendant in January 2006 and at that time he informed herof his arrest as to the instant offenses. The People's subsequent questioning was limited to thewitness's delay in coming forward from January 2006 through April 2006. Thus, the Peopleproperly established that the alibi witness was aware of the nature of the charges pending againstthe defendant during the period of delay about which the witness was questioned (see Peoplev Miller, 89 NY2d at 1079; People v Dawson, 50 NY2d at 321; People v Stokes,282 AD2d at 553).
The defendant's argument that it was error to admit into evidence the written confession ofthe codefendant, who testified at the defendant's trial, as the confession constituted a priorconsistent statement, is unpreserved for appellate review because defense counsel did not objectto the document's introduction into evidence (see CPL 470.05 [2]). In any event, thestatement was properly admitted. Defense counsel created the inference that the codefendant'stestimony implicating the defendant in the instant offense was "a recent fabrication," made toobtain a specific plea agreement (People v McClean, 69 NY2d 426, 428 [1987]).Because the motive to obtain this agreement was not present at the time that the codefendant'swritten statement was made, the prior consistent statement was properly admitted into evidenceto aid in establishing the codefendant's credibility (id.; see People v Baker, 23 NY2d307, 322 [1968]; People v Yarbough, 229 AD2d 605, 606 [1996]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dillon, Leventhal andChambers, JJ., concur.