| People v Whitehurst |
| 2010 NY Slip Op 01677 [70 AD3d 1057] |
| February 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Isaiah Whitehurst, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered June 14, 2007, convicting him of attempted murder in the second degree, assault inthe first degree, criminal possession of a weapon in the second degree, criminal possession of acontrolled substance in the fourth degree, and criminal possession of a weapon in the fourthdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofthe crimes of attempted murder in the second degree, assault in the first degree, and criminalpossession of a weapon in the second degree, is unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event,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 guilt ofthose crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), 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]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt as to those crimes was not against the weight of the evidence (see Peoplev Romero, 7 NY3d 633 [2006]).
The prosecutor's comments during summation that the People's witnesses testified as to whatthey "honestly remember happening," and that the jury should not "buy" into the defendant'stestimony that he merely picked up the weapon used in the crimes after someone else committedthem, did not exceed the bounds of rhetorical comment permissible in closing argument, andconstituted either fair comment on the evidence that was presented or fair response to thedefense summation (see People v Summa, 33 AD3d 735 [2006]; People vMcHarris, 297 AD2d 824 [2002]; People v Ryan, 240 AD2d 775 [1997]). Althoughthe prosecutor's comment that the defendant did not deserve the jury's sympathy was improper,the error was harmless.[*2]
The defendant failed to preserve for appellate review theremainder of his challenges to the remarks made by the prosecutor during summation, as defensecounsel either did not object to them, or raised only a general objection (see CPL 470.05[2]; People v Gill, 54 AD3d 965, 966 [2008]; People v Robbins, 48 AD3d 711[2008]; People v Salnave, 41 AD3d 872 [2007]). In any event, none of these additionalchallenged remarks exceeded the bounds of permissible rhetorical comment, and they constitutedfair comment on the evidence or fair response to the defense summation.
Contrary to the defendant's contention, defense counsel's failure to object to the prosecutor'sremarks during summation did not deprive him of the effective assistance of counsel (seePeople v Benevento, 91 NY2d 708 [1998]; People v Robbins, 48 AD3d 711 [2008];People v Gonzalez, 44 AD3d 790 [2007]). Dillon, J.P., Miller, Eng and Roman, JJ.,concur.