| People v Pringle |
| 2010 NY Slip Op 02249 [71 AD3d 1450] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KennethPringle, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered December 5, 2005. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree and criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]). Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]) and,in any event, that contention is without merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
We reject the contention of defendant that he was denied his right of confrontation whenSupreme Court admitted in evidence the victim's statement to the police identifying defendant asthe perpetrator. The victim testified at trial and was subjected to extensive cross-examinationconcerning that statement (see generally Crawford v Washington, 541 US 36 [2004]).We further conclude that the victim's statement was admissible under the excited utteranceexception to the hearsay rule (see People v Cotto, 92 NY2d 68, 78-79 [1998]). Defendantfailed to preserve for our review his contention that he was deprived of a fair trial byprosecutorial misconduct on summation (see People v Smith, 32 AD3d 1291, 1292 [2006], lv denied8 NY3d 849 [2007]; People vMelendez, 11 AD3d 983 [2004], lv denied 4 NY3d 888 [2005]). In any event,that contention is without merit. Although we agree with defendant that, in two instances, theprosecutor improperly vouched for the credibility of the victim, and such conduct is not to becondoned, we nevertheless conclude that it was not so egregious as to deprive defendant of a fairtrial (see People v White, 291 AD2d 842 [2002], lv denied 98 NY2d 656[2002]). We reject the further contention of defendant that he was denied effective assistance ofcounsel based on, inter alia, the failure of defense counsel to make certain motions. Defendantfailed to demonstrate that those motions, if made, would have been successful (see People v Caban, 5 NY3d 143,152 [2005]; People v Peterson, 19AD3d 1015 [2005], lv denied 6 NY3d [*2]851[2006]), and we conclude that defense counsel provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, the sentence is not undulyharsh or severe. Present—Smith, J.P., Fahey, Carni, Lindley and Sconiers, JJ.