| People v Gadsden |
| 2011 NY Slip Op 01858 [82 AD3d 902] |
| March 8, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shawn Gadsden, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, andDaniel A. McMillan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered June 18, 2006, convicting him of robbery in the first degree and robbery in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review (see CPL 470.05 [2];People v Romero, 7 NY3d 911,912 [2006]; People v Tonge, 93 NY2d 838, 838-839 [1999]). In any event, most of thechallenged remarks were fair comment on the evidence, permissible rhetorical comment, or fairresponse to defense counsel's summation (see People v Halm, 81 NY2d 819, 821 [1993];People v Galloway, 54 NY2d 396, 399 [1981]; People v Polin, 63 AD3d 1180 [2009]). To the extent that theprosecutor exceeded the bounds of permissible rhetorical comment, any error was harmless(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Torres, 72 AD3d 709[2010]).
The defendant failed to preserve for appellate review his claim that he was deprived of a fairtrial because the prosecutor stated, in his opening statement, that two eyewitnesses wouldidentify the defendant, but thereafter failed to ask one of those eyewitnesses whether she could infact identify the defendant (see CPL 470.05 [2]; People v Seabrooks, 244 AD2d514 [1997]). In any event, absent bad faith or undue prejudice, a prosecutor's failure to proveevery statement in his or her opening will not result in the reversal of a jury verdict (see People v Bueno, 47 AD3d 642,643 [2008]; People v Zienkowicz, 213 AD2d 435, 436 [1995]). Here, there is noevidence that the prosecution acted in bad faith and, under the circumstances [*2]of this case, the defendant was not prejudiced.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Prudenti, P.J., Rivera, Lott and Miller, JJ., concur.