| People v Spencer |
| 2013 NY Slip Op 05137 [108 AD3d 1081] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KurySpencer, Appellant. |
—[*1] Eric R. Schiener, Special Prosecutor, Geneseo, for respondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.),rendered January 13, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree (two counts) and failure to keep right.
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 of,inter alia, two counts of assault in the second degree (Penal Law § 120.05 [4]),defendant contends that he was denied a fair trial based on prosecutorial misconduct. Wereject that contention. When defense counsel objected to a remark made by theprosecutor during his opening statement on the ground that it improperly shifted theburden of proof, County Court instructed the jury to disregard the comment, and the juryis presumed to have followed the court's instruction (see People v Page, 105 AD3d 1380, 1382 [2013]).Additionally, we conclude that the isolated remark did not deprive defendant of a fairtrial (see People v Turgeon,8 AD3d 1109, 1109 [2004], lv denied 3 NY3d 682 [2004]). Defendant alsocontends that the prosecutor engaged in misconduct by pursuing charges relating to twovictims because the incidents involving those victims occurred in a different jurisdictionfrom the incident involving the third victim, but we conclude that defendant was notprejudiced thereby. The charges against defendant arose from his actions while he wasoperating a motor vehicle and where his vehicle almost struck the respective vehicles ofthe two victims at issue before colliding head-on with a third vehicle; defendant,however, was convicted of charges stemming only from the collision with the thirdvehicle. Moreover, the evidence with respect to the near collision with the first twovehicles would have been admissible in the trial on the charges with respect to thecollision with the third vehicle (see People v MacLean, 48 AD3d 1215, 1215-1216 [2008],lv denied 10 NY3d 866 [2008], reconsideration denied 11 NY3d 790[2008]), and thus there was no prejudice to defendant (see generally People vBrown, 83 NY2d 791, 794 [1994]). The remarks by the prosecutor during hiscross-examination of a defense witness, while inappropriate, did not deny defendant afair trial inasmuch as the remarks were not aimed at defendant nor did they have anynegative impact on him (see People v Rodriguez, 103 AD2d 121, 128-129[1984]). Although we agree with defendant that the prosecutor engaged in misconduct byreferring to facts not in evidence, the court issued strong curative instructions thatalleviated any prejudice (seePeople v Stallworth, 21 AD3d 1412, 1413 [2005], lv denied 6 NY3d759 [2005]).[*2]
Contrary to defendant's contention, the court didnot abuse its discretion in denying his request to poll the jurors to determine whether theyhad knowledge of a story published during the trial about the case (see People v Rivera, 31 AD3d790, 790-791 [2006], lv denied 7 NY3d 904 [2006]; see generally People vShulman, 6 NY3d 1, 32 [2005], cert denied 547 US 1043 [2006]; People v Williams, 78 AD3d160, 167 [2010], lv denied 16 NY3d 838 [2011]). The court properly notedthat conducting such an inquiry "could have the effect of focusing the jurors' attention onsomething that there was no indication any of them had seen" (Williams, 78AD3d at 167). The court also properly denied defendant's motion for a Fryehearing inasmuch as the testimony of the People's expert "did not involve any novelprocedures or innovative scientific theory" (People v Garrow, 75 AD3d 849, 852 [2010]; seegenerally People v Wernick, 89 NY2d 111, 115-116 [1996]). Instead, the expert'sconclusions regarding intoxication by dextromethorphan, an ingredient in cough syrup,were based on basic principles of toxicology, which is a "well-established and acceptedmethodolog[y]" (Nonnon v Cityof New York, 88 AD3d 384, 394 [2011]; see Marso v Novak, 42 AD3d 377, 378 [2007], lvdenied 12 NY3d 704 [2009], rearg denied 12 NY3d 881 [2009]).
Finally, defendant contends that he "was unconstitutionally punished for exercisinghis right to a trial by a judge who should have recused himself." To the extent thatdefendant contends that the court should have granted his recusal motion, we concludethat there was no abuse of discretion by the court (see People v Shultis, 61 AD3d 1116, 1117 [2009], lvdenied 12 NY3d 929 [2009]; People v Brown, 270 AD2d 917, 917-918[2000], lv denied 95 NY2d 851 [2000]; see generally People v Moreno,70 NY2d 403, 405-406 [1987]). Defendant failed to preserve for our review hiscontention that the sentence was vindictive (see People v Hurley, 75 NY2d 887,888 [1990]; People vIrrizarry, 37 AD3d 1082, 1083 [2007], lv denied 8 NY3d 946 [2007])and, in any event, that contention is also without merit (see Irrizarry, 37 AD3d at1083). It is well settled that " '[t]he mere fact that a sentence imposed after trial is greaterthan that offered in connection with plea negotiations is not proof that defendant waspunished for asserting his right to trial' " (id.). The sentence is not unduly harshor severe. Present—Centra, J.P., Fahey, Carni and Sconiers, JJ.