| People v Figgins |
| 2010 NY Slip Op 03645 [72 AD3d 1599] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AndrewFiggins, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered May1, 2008. The judgment convicted defendant, upon a jury verdict, of murder 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 upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [3]). According to the evidencepresented by the People at trial, defendant and three accomplices went to the apartment wherethe victim resided in order to rob him, whereupon defendant shot the victim, causing his death.Defendant contends that County Court erred in admitting evidence that the victim previously hadbeen robbed by two of the accomplices. Defendant himself first elicited that evidence from awitness, however, and we therefore conclude that he waived any objection to its admission (see generally People v Backus, 67AD3d 1428 [2009], lv denied 13 NY3d 936 [2010]; People v Brown, 57 AD3d 1461[2008], lv denied 12 NY3d 814 [2009], denied reconsideration 12 NY3d 923[2009]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition to presentingthe testimony of the three accomplices implicating defendant, the People also presented thestatement of defendant to the police in which he admitted that he was with the accomplicesduring the robbery, and they presented evidence that defendant's DNA was found on the murderweapon. Defendant contends that the court erred in admitting in evidence a surveillance videothat depicted a vehicle being parked and four individuals walking toward the crime scene. Evenassuming, arguendo, that the court erred in admitting that video in evidence because it was notproperly authenticated (see generally People v Patterson, 93 NY2d 80, 84 [1999]), weconclude that any error in its admission is harmless (see generally People v Crimmins,36 NY2d 230, 241-242 [1975]).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialbased on prosecutorial misconduct on summation (see People v Brink, 57 AD3d 1484, 1486 [2008], lv [*2]denied 12 NY3d 851 [2009]; People v Wellsby, 30 AD3d 1092[2006], lv denied 7 NY3d 796 [2006]). In any event, that contention is without merit.Certain comments by the prosecutor were fair response to defense counsel's summation (see People v Jackson, 46 AD3d1408, 1408-1409 [2007], lv denied 10 NY3d 841 [2008]), and any allegedmisconduct by the prosecutor in his remaining remarks to which defendant now objects was notso egregious as to deprive defendant of a fair trial (see People v Johnston, 43 AD3d 1273, 1275 [2007], lv denied9 NY3d 1007 [2007]; People v Early, 266 AD2d 881, 882 [1999], lv denied94 NY2d 918 [2000]). Finally, defendant received effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not unduly harsh orsevere. Present—Centra, J.P., Carni, Lindley, Green and Gorski, JJ.