| People v Lewis |
| 2010 NY Slip Op 02969 [72 AD3d 705] |
| April 6, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LeoM. Lewis, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Selha R.Abed on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Alfieri,J.), rendered February 11, 2008, convicting him of attempted murder in the second degree andcriminal possession of a weapon in the second degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of attempted murder in the second degree is unpreserved for appellate review, asdefense counsel merely made a general motion for a trial order of dismissal of that charge basedupon the People's alleged failure to make out a prima facie case (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,491-492 [2008]; People v Rudolph,16 AD3d 1151, 1152 [2005]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish his guilt of attempted murder in the second degree and both countsof criminal possession of a weapon in the second degree beyond a reasonable doubt. Moreover,in fulfilling our responsibility to conduct an independent 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 of attempted murder in the second degree and both counts of criminalpossession of a weapon in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The jury could reasonably conclude that the defendant "engaged in conductthat came 'dangerously near' [the] commission of the completed crime" of murder in the seconddegree (People v Kassebaum, 95 NY2d 611, 618 [2001], quoting People vAcosta, 80 NY2d 665, 670 [1993]; see People v German, 243 AD2d 647, 648[1997]; People v Gonzalez, 216 AD2d 412, 413 [1995]). The evidence established thatthe defendant fired a shot from a weapon which passed so close to the head of the intendedvictim that the intended victim felt as if her "ears exploded." Moreover, a witness who had adirect view of the incident testified that the intended victim and three people who were sittingnear her "were immediately in front of" the defendant. In addition, the evidence established thatthe gun that the defendant fired was recovered by the police, and that what the defendantcontends was a second gun was the plastic handle of the gun that was [*2]recovered.
With respect to the defendant's contention that certain comments made by the prosecutorduring his summation were improper and deprived him of a fair trial, the trial court's sustainingof the defendant's objections must be deemed to have cured any prejudice, as the defendantfailed to timely move for a mistrial (seePeople v Way, 69 AD3d 964 [2010]; People v Benloss, 60 AD3d 686 [2009]). In any event, theprosecutor's comments "were not so egregious" or "so flagrant or pervasive" as to deprive thedefendant of a fair trial (People vFranklin, 64 AD3d 614, 615 [2009]; see People v Philbert, 60 AD3d 698, 699 [2009]; People v Almonte, 23 AD3d 392,394 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.