| People v Walker |
| 2014 NY Slip Op 03068 [117 AD3d 1441] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRonald Walker, Also Known as Shorty, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, the Abbatoy Law Firm, PLLC,Rochester (David M. Abbatoy, Jr., of counsel), for defendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),rendered March 11, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]), defendant contends that he was deprived of a fair trial byinstances of prosecutorial misconduct during, inter alia, the prosecutor'scross-examination of him. Initially, we note that only some of the instances raised onappeal are preserved for our review, and we decline to exercise our power to address theunpreserved instances as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). With respect to those contentions that are preserved for our review, wenote that, "where, as here, the defendant's testimony leaves open only the suggestion thatthe People's witnesses have lied . . . , the prosecution has the right to[cross-examine defendant on the issue] whether the witnesses are liars" (People vOverlee, 236 AD2d 133, 139 [1997], lv denied 91 NY2d 976 [1998]; see People v Allen, 13 AD3d892, 897-898 [2004], lv denied 4 NY3d 883 [2005]; see also People vMorris, 267 AD2d 1032, 1033 [1999], lv denied 95 NY2d 800 [2000]). Inany event, we conclude that defendant was not thereby denied a fair trial (see People v Shinebarger, 110AD3d 1478, 1480 [2013]; People v Gonzalez, 206 AD2d 946, 947 [1994],lv denied 84 NY2d 867 [1994]).
Contrary to defendant's further contention, the prosecutor did not engage inprosecutorial misconduct on summation by vouching for the credibility of the informant,and, in any event, the instances of alleged prosecutorial misconduct on summation ofwhich defendant complains were " 'either a fair response to defense counsel'ssummation or fair comment on the evidence' " (People v Green, 60 AD3d1320, 1322 [2009], lv denied 12 NY3d 915 [2009]; see People vHalm, 81 NY2d 819, 821 [1993]). Furthermore, even assuming, arguendo, that theburden of proof was impermissibly shifted by other comments made by the prosecutorduring summation (see People vGrant, 94 AD3d 1139, 1141 [2012], lv denied 20 NY3d 1099 [2013]),we conclude that the comments were not so [*2]pervasiveor egregious as to deny defendant a fair trial (see People v Rogers, 103 AD3d 1150, 1153-1154 [2013],lv denied 21 NY3d 946 [2013]).
Defendant further contends that the verdict is contrary to the weight of the evidencein light of his acquittal of the first four counts of the indictment charging him with othersales of controlled substances on other days, and in light of the jury's apparent acceptanceof his agency defense with respect to those counts. We reject that contention. Generally,"[w]e accord great deference to the resolution of credibility issues by the trier of fact'because those who see and hear the witnesses can assess their credibility and reliabilityin a manner that is far superior to that of reviewing judges who must rely on the printedrecord' " (People vAnge, 37 AD3d 1143, 1144 [2007], lv denied 9 NY3d 839 [2007],quoting People v Lane, 7NY3d 888, 890 [2006]; see generally People v Bleakley, 69 NY2d 490, 495[1987]). Here, the first four counts of the indictment were based entirely upon thetestimony of a witness who was a paid police informant and an admitted drug user, andwho had personal animus toward defendant, but the fifth count was also based on thetestimony of an undercover sheriff's investigator who purchased the drugs at issue.Consequently, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), after exercising our factual review powerand according deference to the jury's credibility determinations, we find that the Peopledisproved the agency defense beyond a reasonable doubt with respect to the fifth count,of which defendant was convicted (see People v Foster, 50 AD3d 1559, 1559 [2008], lvdenied 10 NY3d 934 [2008]), and that the verdict is not contrary to the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Present—Smith, J.P.,Fahey, Peradotto, Carni and Sconiers, JJ.