| People v Collins |
| 2011 NY Slip Op 09666 [90 AD3d 1069] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Melvin Collins, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann,J.), rendered March 8, 2010, convicting him of robbery in the second degree (two counts),attempted robbery in the second degree (two counts), criminal possession of a weapon in thethird degree (two counts), unauthorized use of a vehicle in the third degree, and resisting arrest,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly admitted a recording of atelephone call made by the defendant while he was incarcerated (see People v Ely, 68NY2d 520, 527-528 [1986]; People v McGee, 49 NY2d 48, 59-60 [1979], cert deniedsub nom. Waters v New York, 446 US 942 [1980]). A sufficient foundation was establishedthrough the testimony of a senior program specialist for the Department of Corrections, whotestified, inter alia, that he was familiar with the recording system at the prison, that the prisonroutinely recorded the inmates' telephone calls, and that the recordings were housed in acomputer system and identified by an inmate's unique book and case number (see People vCratsley, 86 NY2d 81, 89-91 [1995]; People v Kennedy, 68 NY2d 569, 575-578[1986]; cf. People v Manor, 38AD3d 1257 [2007]).
We reject the defendant's contention that he was deprived of a fair trial by impropercomments made during summation by the prosecutor. The challenged remarks were within thebounds of permissible rhetorical comment, fair response to arguments and issues raised by thedefense, fair comment on the evidence, or cured by the trial court's charge to the jury (see People v Cabrera, 85 AD3d942, 943 [2011]).
The defendant's contention that the jury charge on consciousness of guilt was deficient isunpreserved for appellate review (see CPL 470.05 [2]; People v Mella-Rodriguez, 39 AD3d671, 672 [2007]), and, in any event, is without merit (see People v Knight, 261AD2d 487, 487 [1999]). Rivera, J.P., Eng, Roman and Sgroi, JJ., concur.