| People v Moore |
| 2012 NY Slip Op 01349 [92 AD3d 575] |
| February 23, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DerekMoore, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 14,2009, as amended March 5, 2009, convicting defendant, after a jury trial, of kidnapping in thesecond degree (two counts), coercion in the first degree (five counts), criminal possession of aweapon in the third degree (three counts), reckless endangerment in the first degree (two counts),intimidating a witness in the third degree, assault in the second degree and unlawfulimprisonment in the second degree, and sentencing him, as a second violent felony offender, toan aggregate term of 18 years, unanimously affirmed.
Defendant challenges the sufficiency of the evidence as to several of his convictions.However, defendant did not alert the trial court to the specific arguments he makes on appeal.Accordingly, these claims are unpreserved (see People v Gray, 86 NY2d 10, 20-22[1995]), and we decline to review them in the interest of justice. As an alternative holding, wereject defendant's sufficiency claims on the merits. We further find that the verdict was notagainst the weight of the evidence in any respect (see People v Danielson, 9 NY3d 342, 348-349 [2007]).
The evidence satisfied the abduction element of kidnapping. The jury could have reasonablyinferred that when defendant tied up and gagged the victim, defendant restrained her "with intentto prevent [her] liberation by . . . using or threatening to use deadly physical force"(Penal Law § 135.00 [2] [b]). The manner in which defendant gagged the victim wasreadily capable of causing death by asphyxiation. The evidence supported an inference that whendefendant gagged the victim, he intended, among other things, to prevent her from calling forhelp. The evidence also supported the physical injury element of the assault conviction and thegrave risk of death element of the reckless endangerment convictions.
The prosecutor's summation remark that the victim had told the jury "what exactly hadhappened" did not constitute improper vouching, when viewed in context. Instead, it was apermissible response to the defense summation, which attacked the victim's[*2]credibility (see People v Overlee, 236 AD2d 133, 144[1997], lv denied 91 NY2d 976 [1998]). The prosecutor's attacks on the credibility ofdefendant's sister's testimony were likewise permissible (id. at 143-144). Defendant didnot preserve any of his remaining challenges to the prosecutor's summation, and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on themerits.
The court provided the jury with sufficient instructions on evaluating the credibility ofwitnesses. The court was not required to marshal specific evidence relating to credibility (seePeople v Saunders, 64 NY2d 665, 667 [1984]).
The court responded meaningfully to a jury note (see People v Malloy, 55 NY2d 296,302 [1982], cert denied 459 US 847 [1982]). The court properly exercised its discretionwhen it provided some very limited and nonprejudicial clarifying information, even if thatinformation went slightly beyond the jury's request (see e.g. People v DeGannes, 76 AD3d 935 [2010], lvdenied 15 NY3d 919 [2010]).
Defendant's remaining contentions are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we also reject them on the merits.Concur—Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.