| People v Jenkins |
| 2012 NY Slip Op 02321 [93 AD3d 861] |
| March 27, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AndreJenkins, Appellant. |
—[*1]
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.),rendered October 3, 2005, convicting him of robbery in the first degree (three counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), it was legally sufficientto establish his identity as the perpetrator (see People v Chase, 60 AD3d 1077, 1078 [2009]). Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Mills, 20 AD3d 779, 780[2005]; cf. People v Chase, 60 AD3d at 1078-1079).
The defendant's contentions that the admission into evidence of a certain statement anontestifying codefendant made to the police violated his Sixth Amendment right toconfrontation under Bruton v United States (391 US 123 [1968]), and under Crawfordv Washington (541 US 36 [2004]), are unpreserved for appellate review (see CPL470.15; People v Reid, 71 AD3d699, 699-700 [2010]) and, in any event, without merit (see Crawford v Washington,541 US at 59 n 9; People vReynoso, 2 NY3d 820, 821 [2004]; People v Mack, 89 AD3d 864, 865-866 [2011]; People v Reyes, 49 AD3d 565,566 [2008]; People v Dickson, 21AD3d 646, 647 [2005]; People v Melendez, 285 AD2d 819, 821-822 [2001];People v Johnson, 224 AD2d 635, 638 [1996]; People v Davis, 168 AD2d 565,565 [1990]).
The defendant's contention that certain allegedly improper comments made by the prosecutorduring his summation deprived the defendant of his right to a fair trial is largely unpreserved forappellate review (see CPL 470.05 [2]; People v Osorio, 49 AD3d 562, 563-564 [2008]). In any event, forthe most part, the challenged remarks were fair comment on the evidence, permissible rhetoricalcomment, or responsive to the summation of defense counsel or the codefendant's counsel (see People v Dorgan, 42 AD3d505 [2007]; People v McHarris, 297 AD2d 824, 825 [2002]; People v Clark,222 AD2d 446, 447 [1995]; People v Vaughn, 209 AD2d 459, 460 [1994]; People vHolder, 203 AD2d 382, 383 [1994]; [*2]People vAnderson, 154 AD2d 607, 607 [1989]; People v Geddes, 134 AD2d 279, 280 [1987];cf. People v Smith, 288 AD2d 496, 497 [2001]). To the extent that some of thecomments were improper, they were sufficiently addressed by the trial court's instructions to thejury (see People v Evans, 291 AD2d 569 [2002]; People v Brown, 272 AD2d338, 339 [2000]) and, in any event, "were not so flagrant or pervasive as to deny the defendant afair trial" (People v Almonte, 23AD3d 392, 394 [2005]; see People v Svanberg, 293 AD2d 555 [2002]).
The defendant's contention that he did not receive the effective assistance of counsel iswithout merit (see People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Caban, 5 NY3d143, 156 [2005]). Dillon, J.P., Florio, Austin and Roman, JJ., concur.