| People v Kinard |
| 2012 NY Slip Op 05024 [96 AD3d 976] |
| June 20, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gabriel Kinard, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and JacquelineRosenblum of counsel; Jeffrey Bloomfield on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.),rendered April 20, 2011, convicting him of robbery in the first degree (nine counts), robbery inthe second degree (two counts), criminal possession of a weapon in the second degree (twocounts), assault in the second degree (two counts), and criminal possession of stolen property inthe fifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the verdict was against the weight of the evidence in light of,inter alia, certain alleged inconsistencies in the testimony of the People's witnesses. Upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Delamota, 18 NY3d 107, 116-117 [2011]; People v Romero, 7 NY3d 633 [2006]; People v Marquez, 82 AD3d 1123,1123-1124 [2011]; People v Brookins, 184 AD2d 567 [1992]).
The defendant's contention that various comments made by the prosecutor during hissummation were improper and require reversal is unpreserved for appellate review, as thedefendant did not object to any of the remarks at issue (see People v Lee, 34 AD3d 696 [2006]; People v Nieves, 2 AD3d 539, 540[2003]). In any event, most of the challenged remarks constituted fair comment on the evidenceor were responsive to defense counsel's summation (see People v Halm, 81 NY2d 819,821 [1993]; People v Thompson, 81AD3d 670, 672-673 [2011], lv granted 18 NY3d 998 [2012]; People vNieves, 2 AD3d at 540; People v Spivey, 305 AD2d 135 [2003]). To the extent thatany of the challenged remarks were improper, they constituted harmless error (see People vThompson, 81 AD3d at 673; Peoplev Franklin, 64 AD3d 614, 615 [2009]; People v Lee, 34 AD3d at 697).
Contrary to the defendant's contention, the Supreme Court, which was entitled to rely on itsown observations of and interactions with the defendant, providently exercised its discretion indenying the defendant's application for a competency examination (see CPL 730.30 [1];People v Morgan, 87 NY2d 878, 879-880 [1995]; People v Tejada, 36 AD3d 455, 456 [2007]; People v Jordan, 21 AD3d 1039[2005]). Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.