| People v Mitchell |
| 2009 NY Slip Op 09046 [68 AD3d 784] |
| December 1, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Mitchell, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered September 5, 2007, convicting him of manslaughter in the first degree, assault inthe second degree, and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
While it was proper for the prosecutor to elicit testimony that the defendant attempted toprocure a false alibi (see People v Moses, 63 NY2d 299, 308 [1984]), eliciting thewitness's reason for agreeing to provide one was error (see People v Buzzi, 238 NY 390,398-399 [1924]; cf. People v Myrick,31 AD3d 668, 669 [2006]). However, such error was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that the errorcontributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Furthermore, the defendant's contention concerning a comment made by the prosecutorduring summation is unpreserved for appellate review, as he raised only a general objection tothe contested remark, failed to request curative instructions, and did not timely move for amistrial on that ground (see CPL 470.05 [2]; People v Dashosh, 59 AD3d 731 [2009]; People v Miller, 57 AD3d 568[2008]). In any event, the challenged portion of the prosecutor's summation constituted faircomment on, or reasonable inferences drawn from, the evidence (see People v Ashwal,39 NY2d 105 [1976]; People vHughley, 43 AD3d 1180 [2007]).[*2]
The defendant received the effective assistance ofcounsel (see People v Benevento, 91 NY2d 708, 712 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Eng, Austin and Roman, JJ., concur.