| People v Flowers |
| 2013 NY Slip Op 00353 [102 AD3d 885] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lonnie Flowers, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A.Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered October 14, 2010, convicting him of murder in the second degree,attempted murder in the second degree, criminal possession of a weapon in the seconddegree, and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, under the circumstances presented, theSupreme Court providently exercised its discretion and did not deprive him of dueprocess and the right to present a defense by denying his request to recall a certainwitness for further cross-examination (see People v Smith, 90 AD3d 561, 561 [2011]; see alsoPeople v Macklin, 247 AD2d 408, 408 [1998]; People v Shapiro, 227 AD2d506, 507 [1996]; People v Bunting, 134 AD2d 646, 648 [1987]; People vMercado, 134 AD2d 292, 292 [1987]; cf. People v Rostick, 244 AD2d 768,769 [1997]; People v Desire, 113 AD2d 952, 952 [1985]).
The defendant's contention that the Supreme Court deprived him of due process anda fair trial by the admission of certain testimony related to his girlfriend is unpreservedfor appellate review (see CPL 470.05 [2]; People v Price, 120 AD2d 690,690 [1986]). In any event, the court providently exercised its discretion in denying thedefendant's belated motion for a mistrial based on the admission of such testimony(see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Dollar, 79 AD3d1062, 1062 [2010]).
The defendant's contention that certain allegedly improper comments made by theprosecutor during his summation deprived the defendant of due process and a fair trial isunpreserved for appellate review (see CPL 470.05 [2]; People v Osorio, 49 AD3d562, 563-564 [2008]). In any event, for the most part, the challenged remarks werefair comment on the evidence, or remained within the broad bounds of rhetoricalcomment permissible in summations, and were responsive to the summation of defensecounsel (see People vDorgan, 42 AD3d 505, 505 [2007]; People v Barnes, 33 AD3d 811, 812 [2006]; People vMcHarris, 297 AD2d 824, 825 [2002]; People v Sinclair, 231 AD2d 926,926 [1996]; People v Clark, 222 AD2d 446, 447 [1995]; People vVaughn, 209 AD2d 459, 460 [1994]; People v Holder, 203 AD2d [*2]382, 383 [1994]; People v Thomas, 186 AD2d 602,602-603 [1992]; People v Anderson, 154 AD2d 607, 607 [1989]). To the extentthat some of the comments were improper, they were sufficiently addressed by theSupreme Court's instructions to the jury (see People v Evans, 291 AD2d 569,569 [2002]; People v Brown, 272 AD2d 338, 339 [2000]) and did not deprivethe defendant of due process and a fair trial (see People v Almonte, 23 AD3d 392, 394 [2005];People v Svanberg, 293 AD2d 555, 555 [2002]; People v Holder, 203AD2d at 383).
Contrary to the defendant's contention, the Supreme Court's imposition ofconsecutive sentences with respect to the count of criminal possession of a weapon in thesecond degree under Penal Law § 265.03 (3) and the counts of murder andattempted murder in the second degree was not illegal (see People v Harris, 96 AD3d502, 503 [2012], lv granted 19 NY3d 1026 [2012]; see generally Peoplev Almodovar, 62 NY2d 126, 130 [1984]; cf. People v Wright, 19 NY3d 359 [2012]; People v Hamilton, 4 NY3d654 [2005]; People vHernandez, 46 AD3d 574, 576-577 [2007]). Mastro, J.P., Lott, Austin andSgroi, JJ., concur.