| People v Rogers |
| 2012 NY Slip Op 03224 [94 AD3d 1152] |
| April 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DarrylRogers, Jr., Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered February 4, 2010, convicting him of murder in the second degree, criminal use of afirearm in the first degree, and criminal possession of a weapon in the second degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a weapon in the second degree under count two of the indictment, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant's contention that the evidence was legally insufficient to disprove hisjustification defense beyond a reasonable doubt is unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins,11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to disprove the defendant's justification defense beyond a reasonable doubt(see Penal Law § 35.15; People v Garcia, 89 AD3d 862, 862-863 [2011]; People v Seals, 78 AD3d 742[2010]). Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), weare satisfied that the jury's rejection of the justification defense and the verdict of guilt on thecount of murder in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's challenge to the legal sufficiency of the evidence supporting his convictionof criminal use of a firearm in the first degree is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d at 621), we find that it was legally sufficientto establish the defendant's guilt of criminal use of a firearm in the first degree when consideredin light of the trial court's charge as given without exception (see People v Ford, 11 NY3d 875, 878 [2008]; People vSala, 95 NY2d 254, 260 [2000]). Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are constrained to weigh the evidence in light of the elementsof the crime as charged without objection by the defendant (see People v Johnson, 10 NY3d 875 [2008]; People v Danielson, 9 NY3d 342,349 [2007]; People v Cooper, 88 NY2d 1056, 1058 [1996]; People v Solis, 43 AD3d 1190,1191 [2007]; People v Dudley, [*2]52 AD3d 840 [2008]).Having done so, we are satisfied that the verdict of guilt with respect to the conviction ofcriminal use of a firearm in the first degree was not against the weight of the evidence (seePeople v Danielson, 9 NY3d at 349; People v Romero, 7 NY3d at 633).
However, under the circumstances, the conviction of criminal possession of a weapon in thesecond degree under count two of the indictment was an inclusory concurrent count of theconviction of criminal use of a firearm in the first degree, and that count should therefore havebeen dismissed (see CPL 300.40 [3] [b]; People v Fowler, 45 AD3d 1372, 1374 [2007]; People vLuster, 148 AD2d 305, 306 [1989]).
Viewing the record as a whole, we find that the defendant was not deprived of the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review (see CPL 470.05 [2];People v Wright, 90 AD3d 679[2011]). In any event, the challenged remarks were fair comment on the evidence, permissiblerhetorical comment, or responsive to defense counsel's summation (see People v Ashwal,39 NY2d 105, 109-110 [1976]).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Dillon, J.P., Florio, Chambers and Roman, JJ., concur.