| People v Cabrera |
| 2011 NY Slip Op 05295 [85 AD3d 942] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MateoCabrera, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin J.),rendered December 7, 2007, convicting him of robbery in the second degree, criminal possessionof stolen property in the fifth degree, assault in the third degree, reckless endangerment in thefirst degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's claim that the evidence was legally insufficient to establish that hecommitted robbery in the second degree, while acting in concert with others, is unpreserved forappellate review, as he failed to address this specific ground as a basis for dismissal in theSupreme Court (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Ramos, 74 AD3d 991,992 [2010]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt of robbery in the second degree under an accomplice theory ofliability beyond a reasonable doubt (seePeople v Hardmon, 70 AD3d 716 [2010]; People v Gellman, 31 AD3d 785, 785-786 [2006]). Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the trial court did not improperly limitcross-examination of the arresting police officer, and did not deprive the defendant of hisfundamental right to present a defense (see People v Graddick, 7 AD3d 811 [2004]; People vSawyer, 304 AD2d 775 [2003]). The defendant fully presented his theory that the incidentwas nothing more than a fight between two groups of men.
The defendant's contention that he was deprived of a fair trial by the prosecutor's allegedmisconduct during the trial is without merit (see People v Thomas, 34 AD3d 606, 606 [2006]). Further, thedefendant's contention that various comments made by the prosecutor during summation wereimproper is without merit. The challenged remarks were within the bounds of permissiblerhetorical comment, fair response to arguments and issues raised by the defense, fair comment onthe evidence, or cured by the trial [*2]court's charge to the jury(see People v Ashwal, 39 NY2d 105, 109 [1976]; People v Pocesta, 71 AD3d 920, 921 [2010]; People v Ayala, 69 AD3d 869,869-870 [2010]).
The defendant's remaining contention is without merit. Mastro, J.P., Angiolillo, Chambersand Cohen, JJ., concur.