| People v Jean-Marie |
| 2009 NY Slip Op 08035 [67 AD3d 704] |
| November 4, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Starland Jean-Marie, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andJudith Aarons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered August 14, 2003, convicting him of robbery in the first degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the identification evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Finger, 95 NY2d 894, 895 [2000]; People v Roberts, 64 AD3d 796[2009]; People v Arias, 64 AD3d786 [2009]). 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, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342, 348-349 [2007]; Peoplev Alexis, 65 AD3d 1160 [2009]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]; People v David, 65 AD3d 1163 [2009]; People v Silberzweig, 58 AD3d762 [2009], lv denied 12 NY3d 920 [2009]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The discrepancies and inconsistencies between the identification testimony of thecomplainant and statements in the police reports were properly for the jury to consider (see People v Calabria, 3 NY3d 80[2004]; People v Stroman, 60AD3d 708, lv denied 12 NY3d 921 [2009]; People v Fields, 28 AD3d 789, 790 [2006]; People v Almonte, 23 AD3d 392[2005]; People v White, 192 AD2d 736, 736-737 [1993]). Moreover, the minordiscrepancies between the complainant's description of the defendant's height, weight, andclothing and his actual physical appearance were also a proper consideration for the jury (see People v Colon, 42 AD3d549, 550 [2007]; People v Caballero, 177 AD2d 496 [1991]). Furthermore, the factthat one of the People's witnesses had an unsavory background and testified pursuant to acooperation agreement did not render his testimony incredible (see People v Manley, 60 AD3d870 [2009], lv denied 12 NY3d 927 [2009]; People v Adams, 302 AD2d601 [2003]; People v Harris, 276 AD2d 562, 562-563 [2000]; People v Alston,243 AD2d 573 [1997]).[*2]
The defendant was not deprived of his right to a fair trialby the prosecutor's comments during summation. Although the prosecutor's remark regardingdefense counsel was improper (see People v Torres, 223 AD2d 741, 742 [1996]), anyprejudice that may have resulted from the remark was alleviated when the trial court sustainedthe defendant's objection and provided a curative instruction to the jury (see People v Warren, 27 AD3d496, 498 [2006]).
The defendant's challenges to the prosecutor's remarks on the issue of cross-racialidentification were not preserved for appellate review, as defense counsel failed to seek furtherameliorative action with respect to those comments after his objections were sustained (seeCPL 470.05 [2]; People v Medina, 53 NY2d 951, 953 [1981]; People v Gill, 54 AD3d 965, 966[2008]; People v Norman, 40 AD3d1130, 1131 [2007]). In any event, the remarks were fair comment upon the evidence andpermissive responses to arguments presented in summation by defense counsel (see People vHalm, 81 NY2d 819, 821 [1993]; People v Smalls, 65 AD3d 708 [2009]; People v Maisonett, 64 AD3d 794[2009]; People v Pinckney, 27AD3d 581, 582 [2006]; People v Dyer, 245 AD2d 299 [1997]).
Given the circumstances of this case, any impropriety with respect to the remaining remarkswas harmless in light of the overwhelming evidence of the defendant's guilt and the absence of asignificant probability that, had the remarks not been made, the defendant would have beenacquitted (see People v Brosnan, 32 NY2d 254, 262 [1973]; People v Tucker, 27 AD3d 592[2006]).
The defendant's ineffective assistance of counsel claims are not reviewable on direct appealbecause they involve matter outside the record (see People v Madrid, 52 AD3d 532, 533 [2008]; People v Alvarez, 51 AD3d 470[2008]; People v Staropoli, 49AD3d 568, 568-569 [2008]; Peoplev Haynes, 39 AD3d 562, 564 [2007]; People v Gillespie, 36 AD3d 626, 627 [2007]; People vZimmerman, 309 AD2d 824 [2003]; People v Boyd, 244 AD2d 497 [1997]). Mastro,J.P., Miller, Angiolillo and Austin, JJ., concur.