| People v Roscher |
| 2014 NY Slip Op 01023 [114 AD3d 812] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Roscher, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered June 11, 2012, convicting him of robbery in the first degree,robbery in the second degree (two counts), assault in the second degree, and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the People laid a proper foundation pursuantto CPL 60.25 for third-party testimony regarding a complainant's prior identification ofthe defendant. That complainant testified that he had previously identified the defendantto the police shortly after an incident on November 7, 2010, but was unable to identifyhim as of the time of the trial in April 2012, a year-and-a-half later. Oncross-examination, the complainant acknowledged that he did not get a good look at theperpetrators of the crime. On redirect examination, he claimed that, although thedefendant looked "a little bit" like his assailant, "I really don't remember." Thecomplainant's testimony provided a sufficient basis for the Supreme Court's finding thathe lacked present recollection of the defendant, and thus, third-party testimony as to thecomplainant's prior identification was admissible (see CPL 60.25; People vHernandez, 154 AD2d 197 [1990]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the second degree and robbery in the second degree under PenalLaw § 160.10 (2) (a) because it did not establish that the element of physical injurywas satisfied with respect to one of the complainants is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see[*2]People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during his opening statement and summation is mostlyunpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vBarton, 110 AD3d 1089, 1089 [2013]). In any event, most of the challengedremarks constituted a fair response to arguments made by defense counsel in summation,or constituted fair comment on the evidence (see People v Ashwal, 39 NY2d105, 109-110 [1976]; People v Bartolomeo, 126 AD2d 375, 390 [1987]). To theextent that some of the prosecutor's remarks were improper, those remarks did notdeprive the defendant of a fair trial, and any other error in this regard was harmless, asthere was overwhelming evidence of the defendant's guilt, and no significant probabilitythat the error contributed to the defendant's conviction (see People v Crimmins,36 NY2d 230, 241-242 [1975]; People v Barton, 110 AD3d 1089 [2013]; People v Washington, 108AD3d 781, 782 [2013]). Balkin, J.P., Chambers, Lott and Hinds-Radix, JJ., concur.