| People v Ambers |
| 2014 NY Slip Op 01457 [115 AD3d 671] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nugene Ambers, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered September 22, 2011, as amended December 14, 2011, convictinghim of course of sexual conduct against a child in the first degree, course of sexualconduct against a child in the second degree, rape in the second degree, and endangeringthe welfare of a child (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During the first round of jury selection, the prosecutor improperly asked theprospective jurors, in evaluating the credibility of one of the complaining witnesses, inessence, to commit themselves to rejecting the doctrine of "falsus in uno," whichgenerally provides that a juror may accept or reject a witness's testimony in whole or inpart (see generally People v Johnson, 225 AD2d 464 [1996]). However, theprosecutor's comments and questions on this topic did not prejudice the defendant (see generally People vSteward, 17 NY3d 104, 113 [2011]; People v Jean, 75 NY2d 744, 745[1989]; People v Dashosh,59 AD3d 731, 731 [2009]). Since the trial court repeatedly advised all of theprospective jurors that it would instruct them on the law, the prosecutor's comments andquestions "could not have been interpreted by the [prospective jurors] as an instructionon the law" (People v Din,62 AD3d 1023, 1024 [2009]; see People v Cephas, 91 AD3d 668, 669 [2012]).Furthermore, contrary to the defendant's contention, certain remarks and questioning bythe prosecutor concerning the same evidence during subsequent rounds of jury selectionwere not improper (see People v Evans, 242 AD2d 948, 949 [1997]; People vPorter, 226 AD2d 275, 276-277 [1996]; see also People v Rivera, 27 AD3d 491, 492 [2006]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (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 testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that various comments made by the prosecutor during her[*2]summation were improper and deprived him of a fairtrial is unpreserved for appellate review, as the defendant either did not object to theremarks at issue, made only a general objection, or failed to request further curative reliefor make a timely motion for a mistrial on the specific grounds now asserted on appealwhen the trial court sustained his objections or provided curative instructions (see People v Barton, 110AD3d 1089 [2013]; Peoplev O'Keefe, 105 AD3d 1062, 1064 [2013]; People v Bajana, 82 AD3d 1111, 1112 [2011]; People v Philbert, 60 AD3d698, 699 [2009]).
The defendant was not deprived of the effective assistance of counsel (see Peoplev Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).The defendant has failed to demonstrate "the absence of strategic or other legitimateexplanations" for counsel's alleged shortcoming (People v Rivera, 71 NY2d 705,709 [1988]; see People vCaban, 5 NY3d 143, 152 [2005]; People v Baugh, 91 AD3d 965, 966 [2012]).
The defendant's remaining contentions are unpreserved for appellate review. Skelos,J.P., Dillon, Hall and Roman, JJ., concur.