| People v Sharpe |
| 2011 NY Slip Op 06866 [87 AD3d 1168] |
| September 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jerome Sharpe, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered May 18, 2010, convicting him of criminal possession of a controlled substance in thefifth degree, criminal possession of a controlled substance in the seventh degree (three counts),reckless driving, making an improper turn, and failing to stop for a stop sign (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court's Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]), which permitted the prosecutor to question the defendant, were he to testify, on theunderlying facts of two of his prior convictions and as to the existence, among others, of twoprior felony convictions, was not an improvident exercise of discretion (see People v Stapleton, 41 AD3d744 [2007]; People vMcLaurin, 33 AD3d 819, 819-820 [2006]; People v Myron, 28 AD3d 681, 683 [2006], cert denied 549US 1326 [2007]; cf. People v Hayes, 97 NY2d 203, 207-208 [2002]).
The defendant contends that the evidence was legally insufficient to support his convictionson the drug possession counts and that the Supreme Court should not have instructed the jury asto the so-called "automobile presumption" (see Penal Law § 220.25 [1]). Contraryto the defendant's contention, the evidence supported an instruction on the automobilepresumption (see Penal Law § 220.25 [1] [c]; People v Leyva, 38 NY2d160, 165-167, 169-170 [1975]; People vMaye, 64 AD3d 795, 795-796 [2009]; People v Rosenthal, 207 AD2d 364[1994]). Moreover, the Supreme Court's charge on the presumption, viewed in its entirety(see People v Rodriguez, 141 AD2d 678 [1988]), accurately conveyed to the jury that it ispermissive, not mandatory (see People vMiller, 57 AD3d 568, 570 [2008]; People v Lowery, 232 AD2d 581, 582[1996]; People v Parks, 199 AD2d 426, 427 [1993]). Further, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt(see People v Maye, 64 AD3d at 796; People v O'Brien, 212 AD2d 741, 742[1995]). Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (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, [*2]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 againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant has not preserved for appellate review his claim that certain of the prosecutor'ssummation comments deprived him of a fair trial (see CPL 470.05 [2]; People v Morris, 2 AD3d 652[2003]; People v McHarris, 297 AD2d 824, 825 [2002]). In any event, the prosecutor'sstatements, for the most part, constituted fair comment on the evidence and the inferences to bedrawn therefrom (see People v McHarris, 297 AD2d at 825), and any comments thatwere improper did not, singly or in combination, deprive the defendant of a fair trial (see People v Jimenez, 84 AD3d1268 [2011]; People vAlmonte, 23 AD3d 392, 394 [2005]). Angiolillo, J.P., Balkin, Hall and Cohen, JJ.,concur.