| People v Boley |
| 2014 NY Slip Op 02788 [116 AD3d 965] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Boley, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered May 21, 2010, convicting him of assault in the first degree,assault in the second degree, and criminal possession of a weapon in the fourth degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecutor committed prosecutorial misconductbecause he failed to conduct a thorough investigation rests on matter dehors the recordand, thus, is not properly before this Court (see generally People v McLean, 15 NY3d 117, 121 [2010];People v Fully, 109 AD3d936, 936 [2013]; People vSteven B., 81 AD3d 843, 843 [2011]).
The Supreme Court properly precluded the defendant's father from testifying that anontestifying witness to the attack told the father that he had hit the complainant with alock and chain. For a statement to be admissible under the exception to the hearsay rulefor declarations against penal interest, a four-part test must be satisfied: (1) the declarantmust be unavailable to testify at the defendant's trial, (2) the declarant must havecompetent knowledge of the facts, (3) the declarant must have known at the time thestatement was made that it was against his or her penal interest, and (4), most important,there must be independent supporting proof indicating that the statement is trustworthyand reliable (see People vEnnis, 11 NY3d 403, 412-413 [2008], cert denied 556 US 1240 [2009];People v Brensic, 70 NY2d 9, 15 [1987]; People v Settles, 46 NY2d 154,167 [1978]; People v Singh,47 AD3d 733, 734 [2008], cert denied 555 US 1011 [2008]). Here thedefendant failed to satisfy the test because he failed to establish that the declarant wasunavailable to testify (see People v Harvey, 270 AD2d 959, 960 [2000]).
The defendant's contention that he was deprived of a fair trial by the prosecutor'scomments in summation is unpreserved for appellate review since he failed to raise hisspecific objections to those comments at trial (see CPL 470.05 [2]; People v Bellman, 112 AD3d732 [2013]; People vBeauliere, 36 AD3d 623, 623 [2007]; People v Materon, 276 AD2d718, 718-719 [2000]). In any event, the majority of the challenged remarks constitutedfair response to arguments made by defense counsel in summation, or constituted faircomment on the evidence (see People v Ashwal, 39 NY2d 105, [*2]109-110 [1976]; People v Roscher, 114 AD3d 812 [2014]; People vBartolomeo, 126 AD2d 375, 390 [1987]). To the extent that a remark made by theprosecutor was improper, it did not deprive the defendant of a fair trial (see People vRoscher, 114 AD3d at 813).
The defendant's contentions that the Supreme Court's justification charge wasconfusing and otherwise improper are unpreserved for appellate review, as he failed toobject to the charge (see Peoplev Gueye, 81 AD3d 974 [2011]; People v Barreto, 70 AD3d 574, 575 [2010]; People v Ware, 36 AD3d838, 839 [2007], mod sub nom. People v Sparber, 10 NY3d 457 [2008]). The defendant'scontention that the verdict was repugnant is also unpreserved for appellate review, as hefailed to raise this issue before the discharge of the jury (see People v Alfaro, 66NY2d 985, 987 [1985]; Peoplev Ariza, 77 AD3d 844, 845 [2010]; People v Moses, 36 AD3d 720 [2007]). Although thedefendant raised these claims in his motion to set aside the verdict, this was insufficientto preserve the claims for review on the direct appeal from the judgment of conviction(see People v Padro, 75 NY2d 820, 821 [1990]; People v Sadler, 49 AD3d670, 670 [2008]; People vDonnigan, 31 AD3d 576, 576 [2006]; People v LaGuerre, 29 AD3d 820, 821 [2006]). In anyevent, the defendant's contentions are without merit.
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 remaining contentions are without merit. Skelos, J.P., Dickerson,Leventhal and Hall, JJ., concur.