| People v McIver |
| 2013 NY Slip Op 04514 [107 AD3d 1591] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent v DerekMcIver, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (James R. Gardner of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered August 1, 2011. The judgment convicted defendant, upon a jury verdict,of promoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]),defendant contends that the evidence of his possession of the dangerous contraband islegally insufficient to support the conviction. We reject that contention (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that the evidence is legally sufficient to establish that defendantconstructively possessed the weapon in question by exercising dominion and control overthe area from which the weapon was seized (see § 10.00 [8]; People v Gayle, 53 AD3d857, 859 [2008], lv denied 11 NY3d 832 [2008]; see generally People vManini, 79 NY2d 561, 573 [1992]).
With respect to defendant's further contention that he was deprived of a fair trial byprosecutorial misconduct during summation, we conclude that " 'the prosecutor [did not]vouch for the credibility of the People's witnesses. Faced with defense counsel's focusedattack on their credibility, the prosecutor was clearly entitled to respond by arguing thatthe witnesses had, in fact, been credible . . . An argument by counsel thathis [or her] witnesses have testified truthfully is not vouching for their credibility' " (People v Roman, 85 AD3d1630, 1632 [2011], lv denied 17 NY3d 821 [2011]; see People v Mendez, 80AD3d 523, 524 [2011], lv denied 16 NY3d 861 [2011]; People v Ruiz, 8 AD3d831, 832 [2004], lv denied 3 NY3d 711 [2004]). In any event, the twocomments challenged by defendant were not so egregious as to deny defendant a fair trial(see People v Lyon, 77AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]; People v Pringle, 71 AD3d1450, 1451 [2010], lv denied 15 NY3d 777 [2010]; People v White,291 AD2d 842, 843 [2002], lv denied 98 NY2d 656 [2002]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.