| People v Gross |
| 2011 NY Slip Op 07446 [88 AD3d 905] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesGross, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered July 24, 2009, convicting him of robbery in the first degree, robbery in the seconddegree (two counts), and robbery in the third degree (three counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The County Court providently exercised its discretion in making its Sandoval ruling(see People v Sandoval, 34 NY2d 371, 374 [1974]), and the defendant was not deprivedof a fair trial thereby. The ruling, inter alia, permitted the People to ask the defendant about aprior felony conviction and the sentence imposed thereon. The County Court struck anappropriate balance between the probative value of the underlying facts of the defendant's priorcrime and the possible prejudice to him (see People v Gray, 84 NY2d 709, 712-713[1995]; People v Quiles, 84 AD3d1415 [2011]; People v Allan,41 AD3d 727 [2007]). Moreover, where, as here, a defendant testifies about another priorconviction that the court, by its Sandoval ruling, had precluded, the defendant " 'opensthe door' on the issue in question, and 'is properly subject to impeachment by the prosecution'suse of the otherwise precluded evidence' " (People v Rodriguez, 85 NY2d 586, 591[1995], quoting People v Fardan, 82 NY2d 638, 646 [1993]; see People vCooper, 92 NY2d 968 [1998]).
The defendant's contention that he was entitled to an instruction on the affirmative defense ofduress (see Penal Law § 40.00 [1]) is unpreserved for appellate review, as thedefendant did not request such an instruction at trial (see CPL 470.05 [2]). In any event,the defendant's contention is without merit where, as here, the defendant denied any involvementin the subject robberies.
The defendant's challenge to certain remarks made by the prosecutor during summation isunpreserved for appellate review, as the defendant failed to object to the challenged remarks attrial (see CPL 470.05 [2]; People v James, 72 AD3d 844, 845 [2010]; People v Wilson, 71 AD3d 799,800 [2010]). In any event, the challenged remarks were fair comment on the evidence and thereasonable inferences to be drawn therefrom, permissible rhetorical comment, or responsive todefense counsel's summation (see People v Ashwal, 39 NY2d 105, 109-110 [1976];People v Ariza, 77 [*2]AD3d 844, 846 [2010]; People v Torres, 72 AD3d 709[2010]).
The defendant's contention that the evidence was legally insufficient to support hisconviction is without merit. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the fact-finder's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he was afforded the effective assistance of counsel(see People v Turner, 5 NY3d476, 480 [2005]; People v Baldi, 54 NY2d 137, 146-147 [1981]).
The sentence imposed was not excessive (see People v Thompson, 60 NY2d 513,519 [1983]; People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Angiolillo, Belen andLott, JJ., concur.