| People v Stewart |
| 2011 NY Slip Op 08622 [89 AD3d 1044] |
| November 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DayquanStewart, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot,and Brooke E. Barnes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered June 19, 2009, convicting him of robbery in the second degree, upon a jury verdict, andsentencing him to a determinate term of imprisonment of 10 years, to be followed by a period of fiveyears of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence of imprisonment for robbery in the second degree from a determinate term ofimprisonment of 10 years to a determinate term of imprisonment of seven years, to be followed by aperiod of five years of postrelease supervision; as so modified, the judgment is affirmed.
The defendant was convicted of robbery in the second degree after the complainant identified himin a lineup and subsequently in court as the person who, with two other men, robbed him at gunpoint.The defendant was arrested shortly after the robbery for possession of a gun that was later identified bythe complainant as the same gun that was used by the defendant during the robbery. The jury acquittedthe defendant of five of the six charges against him, including all of the charges that accused thedefendant of causing the complainant physical injury and that accused the defendant of displaying orusing a firearm. On the conviction of robbery in the second degree, the Supreme Court sentenced thedefendant to a determinate term of imprisonment of 10 years, to be followed by a period of five yearsof postrelease supervision.
Contrary to the defendant's contention, he was not deprived of the right to present a defense as aresult of the Supreme Court's refusal to grant him a continuance of one business day to secure thetestimony of an alibi witness who had testified in the grand jury. The decision of whether to grant acontinuance is a matter that is committed to the trial court's sound discretion (see People v Jackson, 41 AD3d 498,498-499 [2007]). However, where, as here, the protection of fundamental rights is involved, the trialcourt's discretion is "more narrowly construed" (People v Spears, 64 NY2d 698, 700 [1984];see People v Foy, 32 NY2d 473, 476-477 [1973]).
The Supreme Court denied the defendant's request for a continuance of one business day, fromFriday until Monday, but offered the defendant a brief adjournment in order to try to locate the witnessand secure her testimony. When defense counsel indicated that he would not be able to [*2]secure the witness's testimony in that amount of time and would,therefore, be forced to rest the defense's case, the Supreme Court indicated that it would allow thedefense to reopen its case at any time prior to summations should the witness be located. Moreover,the record does not indicate that the witness was within the court's jurisdiction or that the requestedcontinuance would have enabled defense counsel to locate the witness (see People vMoutinho, 146 AD2d 650 [1989]). Under the circumstances, the Supreme Court did notimprovidently exercise its discretion in denying the defendant's request for a continuance of onebusiness day.
The defendant's challenges to numerous summation remarks made by the prosecutor are largelyunpreserved for appellate review because defense counsel either failed to object or made only generalobjections to the remarks (see People vWest, 86 AD3d 583, 585 [2011]; People v Gabriel, 85 AD3d 1201 [2011], lv denied 17 NY3d859 [2011]; People v Blanco, 84 AD3d1392, 1393 [2011], lv denied 17 NY3d 857 [2011]). In addition, the defendant's motionfor a mistrial, which was made after the completion of summations, failed to preserve the defendant'sobjections to the prosecutor's summation remarks (see People v Paul, 82 AD3d 1267 [2011]; People v Salnave, 41 AD3d 872[2007]). In any event, the comments either were responsive to defense counsel's summation, faircomment on the evidence and the reasonable inferences to be drawn therefrom, or permissiblerhetorical comment (see People vSpencer, 87 AD3d 751, 753 [2011]; People v Tisone, 85 AD3d 1066, 1067 [2011]; People v Brown, 84 AD3d 1263[2011]; People v Arnold, 60 AD3d960, 961 [2009]).
There is no merit to the defendant's contention that he was deprived of the effective assistance ofcounsel because defense counsel failed to object to or adequately preserve the defendant's contentionsregarding the above-referenced summation remarks. Based on this record as a whole, the defendantreceived the effective assistance of counsel (see People v Masaguilar, 86 AD3d 619, 620 [2011]).
The sentence imposed was excessive to the extent indicated herein (see People v Suitte,90 AD2d 80, 86 [1982]). Mastro, J.P., Florio, Lott and Cohen, JJ., concur.