| People v Morency |
| 2013 NY Slip Op 01858 [104 AD3d 877] |
| March 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephon Morency, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L.Mandel, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered December 17, 2009, convicting him of attempted assault in the firstdegree and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification testimony. The People established in the firstinstance that the photographic array and lineup were not improper, and the defendantfailed to establish that the procedures were unduly suggestive (see People vChipp, 75 NY2d 327, 335-336 [1990]; People v Birot, 99 AD3d 933 [2012]; People v Seymour, 77 AD3d976, 978 [2010]).
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 beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is largely unpreserved for appellate review(see CPL 470.05 [2]; People v Wright, 90 AD3d 679 [2011]). In any event, thechallenged remarks were fair comment on the evidence, were permissible rhetoricalcomment, constituted a fair response to defense counsel's summation, or otherwise do notwarrant reversal (see People v Galloway, 54 NY2d 396, 401 [1981]; People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Hernandez, 92 AD3d 802, 803 [2012]).[*2]
The sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80, 83 [1982]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Angiolillo, Chambers and Roman, JJ., concur.