| People v Brody |
| 2011 NY Slip Op 01669 [82 AD3d 784] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Emmanuel Brody, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered October 29, 2008, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on theconviction of criminal possession of a weapon in the second degree; as so modified, thejudgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, forresentencing on the conviction of criminal possession of a weapon in the second degree inaccordance herewith.
The defendant contends that he was deprived of the right to confront a witness against himwhen the prosecutor elicited testimony from a police officer that the officer interviewed anontestifying witness regarding whether she had been with the defendant on the date of thecrime. This contention is without merit, since the Supreme Court did not permit any hearsaytestimony regarding the statements of the nontestifying witness to the police officer and therewas no danger that the jury could infer that the nontestifying witness possessed informationwhich could implicate the defendant (see People v Tucker, 54 AD3d 1065, 1066 [2008]; People v Barboza, 24 AD3d 460,461 [2005]).
The defendant's contentions that the prosecutor elicited testimony from an eyewitness andfrom police officers which improperly bolstered the testimony of the eyewitness are unpreservedfor appellate review (see CPL 470.05 [2]). In any event, some of the testimony elicitedfrom the police officers was properly admitted as background information to explain the eventsthat led to the defendant's arrest (see People v Flournoy, 303 AD2d 762 [2003]), andother testimony elicited from the eyewitness and a police officer was properly admitted toexplain and clarify matters first raised and only partially explored during defense counsel'sexamination of those witnesses (seePeople v Williams, 43 AD3d 414 [2007]; People v Goodson, 35 AD3d 760 [2006]). To the extent thattestimony concerning a police radio transmission may have constituted improper bolstering, anyerror was harmless, since the evidence of the defendant's guilt, without reference to the impropertestimony, was overwhelming and there was no significant probability that, but for the error, thejury would have acquitted the defendant (see People v Johnson, 57 NY2d 969, 971[1982]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Herndon, 47 AD3d 837[2008]; People v White, 210 AD2d 271 [1994]).
The defendant did not preserve for appellate review his present contention that the SupremeCourt improperly failed to charge the jury on the limited probative value of flight evidencebecause [*2]he neither requested such a charge nor objected to thecourt's failure to so charge (see CPL 470.05 [2]; People v Jiggetts, 23 AD3d 582 [2005]). In any event, any errorwas harmless, as there was overwhelming evidence of the defendant's guilt and no significantprobability that but for the error, the jury would have acquitted the defendant (see People vCrimmins, 36 NY2d at 241-242; People v Jiggetts, 23 AD3d at 582).
The defendant's contention that certain remarks made by the prosecutor during hissummation were improper and deprived him of a fair trial is unpreserved for appellate review, ashe either did not object to the comments (see People v Anderson, 24 AD3d 460 [2005]; People vWilliams, 303 AD2d 772 [2003]), or made only general objections (see People v Franklin, 64 AD3d614 [2009]; People v Boyce, 54AD3d 1052 [2008]). In any event, most of the remarks were responsive to the argumentspresented in defense counsel's summation (see People v Clarke, 65 AD3d 1055 [2009]). To the extent thatsome remarks were improper, they were not so egregious or pervasive as to deprive the defendantof a fair trial (see People v Porco,71 AD3d 791, 794 [2010], lv granted 15 NY3d 854 [2010]).
As the People correctly concede, the defendant was improperly sentenced as a second violentfelony offender on his conviction for criminal possession of a weapon in the second degreebecause his prior conviction of attempted assault in the second degree is not classified as aviolent felony offense pursuant to Penal Law § 70.02 (see People v Fermin, 36 AD3d 934, 937 [2007]). Accordingly, thejudgment must be modified by vacating the sentence imposed on that conviction and remittingthe matter to the Supreme Court, Queens County, so that the defendant may be resentenced onthat count. The defendant's remaining contentions regarding sentencing are without merit.Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.