| People v Martin |
| 2014 NY Slip Op 02801 [116 AD3d 981] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wayne Martin, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, VictorBarall, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered September 8, 2010, convicting him of murder in the first degreeand assault in the first degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention, raised in his pro se supplemental brief, that the lineupidentification procedure was unduly suggestive, is unpreserved for appellate review,since at the Wade hearing (see United States v Wade, 388 US 218[1967]), he failed to raise the specific grounds upon which he now challenges theprocedure (see CPL 470.05 [2]; People v Fields, 66 AD3d 799, 799 [2009]; People v Lago, 60 AD3d784, 784-785 [2009]). In any event, the People established in the first instance thatthe lineup procedure was not improper, and the defendant failed to establish that theprocedure was unduly suggestive (see People v Chipp, 75 NY2d 327, 335-336[1990], cert denied 498 US 833 [1990]).
The defendant's contention, raised in his main brief and in points I through III of hispro se supplemental brief, that the evidence was legally insufficient to support hisconvictions of murder in the first degree and assault in the first degree, is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gonzalez, 94 AD3d775, 776 [2012]; People vReid, 82 AD3d 1268, 1268 [2011]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348-349 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 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 against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that certain comments made by the prosecutor during his[*2]opening statement and summation were improper anddenied him a fair trial is largely unpreserved for appellate review, since the defendanteither failed to object to the remarks he now challenges, made only a general objection,objected on grounds other than those currently raised, or failed to request additionalinstructions when the trial court gave curative instructions (see CPL 470.05 [2];People v Santos, 105 AD3d1064, 1065 [2013]; Peoplev Prowse, 60 AD3d 703, 704 [2009]). In any event, the challenged portions ofthe prosecutor's opening statement were either not improper or did not deprive thedefendant of a fair trial (see People v Kurtz, 51 NY2d 380, 384 [1980], certdenied sub nom. Kurtz v New York, 451 US 911 [1981]; People v Roscher, 114 AD3d812 [2014]; People v Rogha, 213 AD2d 266, 266 [1995]). Additionally,most of the challenged summation remarks were fair comment upon the evidence, wereresponsive to the defense's summation, were within the bounds of rhetorical comment, ordo not otherwise warrant reversal (see People v Galloway, 54 NY2d 396, 399[1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]). To the extent that anyprejudicial effect may have resulted from certain remarks relating to the lineupidentification, it was ameliorated by the trial court's instructions (see People v Flowers, 102AD3d 885, 886 [2013]; People v Evans, 291 AD2d 569, 569 [2002]).
Contrary to the defendant's contention raised in his pro se supplemental brief, theSupreme Court did not err in sentencing him to consecutive terms of imprisonment formurder in the first degree and for assault in the first degree, since those offenses involvedseparate victims and separate acts (see People v Brathwaite, 63 NY2d 839, 843[1984]; People v Holmes,92 AD3d 957, 957 [2012]).
The defendant was not deprived of the effective assistance of counsel (see People v Caban, 5 NY3d143, 152 [2005]; People vStultz, 2 NY3d 277, 287 [2004]).
The defendant's remaining contentions raised in his pro se supplemental brief areunpreserved for appellate review and, in any event, without merit. Dickerson, J.P., Hall,Roman and Cohen, JJ., concur.