| People v Mutterperl |
| 2012 NY Slip Op 05553 [97 AD3d 699] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bernard Mutterperl, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango,J.), rendered August 26, 2009, convicting him of attempted kidnapping in the second degree,burglary in the second degree, unlawful imprisonment in the second degree, and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of attempted kidnapping in the second degree beyond a reasonable doubt (see People v Antonio, 58 AD3d515, 516 [2009]; People v Cruz, 296 AD2d 22, 25 [2002]; People v Carter,263 AD2d 958, 958-959 [1999]; People v Cassano, 254 AD2d 92, 92-93 [1998]). Thedefendant's intent may be inferred from his conduct and the surrounding circumstances (seePeople v Bracey, 41 NY2d 296, 301 [1977]; see e.g. People v King, 85 AD3d 820 [2011]).
The defendant's contention that the evidence was legally insufficient to establish his guiltbeyond a reasonable doubt of burglary in the second degree, unlawful imprisonment in thesecond degree, and endangering the welfare of a child is unpreserved for appellate review(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt of burglary inthe second degree (see People vOcchione, 94 AD3d 1021 [2012]; People v Albanese, 84 AD3d 1107 [2011]), unlawful imprisonmentin the second degree (see Matter of David H., 69 NY2d 792, 793 [1987]), andendangering the welfare of a child (seePeople v Smith, 69 AD3d 657 [2010]; People v Bray, 46 AD3d 1232, 1234 [2007]).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of [*2]guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant contends that the trial court erred in denying his Batson challenge(see Batson v Kentucky, 476 US 79 [1986]) with respect to the prosecutor's use of aperemptory challenge to exclude a certain person from the jury. The prosecutor provided arace-neutral explanation for excluding the prospective juror at issue (id. at 97). The trialcourt's determination that this explanation was nonpretextual is entitled to deference on appealand should not be disturbed where, as here, it is supported by the record (see People vHernandez, 75 NY2d 350, 356-357 [1990], affd 500 US 352 [1991]; People v Dailey, 86 AD3d 579,580 [2011]; People v Kaplan, 176 AD2d 821 [1991]).
The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of the right to a fair trial is unpreserved for appellate review, as he either failed toraise any objections to the challenged remarks or failed to seek further relief after objections weresustained and curative instructions given (see CPL 470.05 [2]; People v Cummins, 59 AD3d 458[2009]; People v Erskine, 90 AD3d674, 675 [2011]). In any event, the challenged remarks were either fair comment, responsiveto the defense's summation, or within the bounds of permissible rhetorical comment (seePeople v Ashwal, 39 NY2d 105, 109 [1976]; People v Canales, 88 AD3d 1007 [2011]; People v Cummins, 59 AD3d 458[2009]).
In the context of this case, the Supreme Court providently exercised its discretion inprecluding expert testimony on false confessions (see People v Bedessie, 19 NY3d 147 [2012]; People v Walker, 87 AD3d 1352[2011]; People v Crews, 74 AD3d983 [2010]).
The defendant's remaining contention is without merit. Balkin, J.P., Hall, Lott and Cohen,JJ., concur.