| People v Valencia |
| 2011 NY Slip Op 00244 [80 AD3d 632] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisFernando Valencia, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt,and Rebecca Kramer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.),rendered July 7, 2009, convicting him of criminal possession of a weapon in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During the prosecutor's summation, defense counsel objected to certain remarks which criticizedarguments made in the defense summation. Contrary to the defendant's contention, although thosecriticisms would have been better left unsaid, they did not deprive the defendant of a fair trial (seePeople v Galloway, 54 NY2d 396 [1981]). Moreover, it was not improper for the prosecutor toargue that the jury must "look at the testimony, how each witness testified, what they said, did it makesense, was it logical, and was it corroborated . . . were they clear, did they remember,and yes, do they have some kind of a motive to come in here and tell you all something other than thetruth," as that statement constituted a fair synopsis of the manner in which a jury is required to evaluatethe credibility of trial testimony (see 1 CJI[NY] 7.02). With respect to the prosecutor'sreference to the state of mind of the defendant's nephew, the defendant failed to preserve for appellatereview his challenge to that statement, since he did not request curative instructions or move for amistrial after the trial court sustained his objection to the statement (see People v Heide, 84NY2d 943 [1994]). The remainder of the defendant's challenges to the prosecutor's summationcomments are unpreserved for appellate review (see CPL 470.15 [2]).
The trial court did not improvidently exercise its discretion in issuing an Allen charge(see Allen v United States, 164 US 492 [1896]) to the jury (see Matter of Plummer vRothwax, 63 NY2d 243, 251 [1984]; People v Wincelowicz, 258 AD2d 602, 603[1999]). The defendant's argument that the language of the Allen charge was coercive isunpreserved for appellate review (see CPL 470.15 [2]).
Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Bleakley,69 NY2d 490, 495 [1987]). Mastro, J.P., Dillon, Eng and Chambers, JJ., concur.