| People v Smith |
| 2009 NY Slip Op 05800 [64 AD3d 619] |
| July 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marcus Smith, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Dibella, J.), rendered December 8, 2006, convicting him of robbery in the first degree (threecounts), robbery in the second degree (three counts), and assault in the second degree (fourcounts), 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 vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) was a provident exercise of its discretion (seePeople v Walker, 83 NY2d 455 [1994]; People v Williams, 213 AD2d 689 [1995]).
The defendant's contention that the prosecutor's summation remarks constituted reversibleerror because the prosecutor allegedly shifted the burden of proof is unpreserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, the prosecutor's remarks were fair comment on the evidence (see People vAshwal, 39 NY2d 105 [1976]).
The defendant's contention that the court did not adequately respond to a jury noterequesting clarification is unpreserved for appellate review and, in any event, is without merit(see CPL 470.05 [2]; People v Starling, 85 NY2d 509 [1995]; People v Romgobind, 40 AD3d1133 [2007]). The court meaningfully responded by rereading its original instructions to thejury (see People v Malloy, 55 NY2d 296 [1982]; People v Leon, 48 AD3d 701 [2008]; People v Crosby, 33 AD3d 719[2006]).
The Supreme Court providently exercised its discretion in denying the defendant's motion tosever the charges in the indictment pertaining to each incident, since the charges involved [*2]the same or similar law (see CPL 200.20 [3]), and there isnothing in the record indicating that the jury was unable to separately consider the discretecharges (see People v Montalvo, 34AD3d 600 [2006]; People vNickel, 14 AD3d 869 [2005]; People v Berta, 213 AD2d 659 [1995]; Peoplev Prezioso, 199 AD2d 343 [1993]). Skelos, J.P., Angiolillo, Balkin and Belen, JJ., concur.