| People v Oliphant |
| 2014 NY Slip Op 03866 [117 AD3d 1085] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dayquan Oliphant, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered March 10, 2011, convicting him of assault in the second degreeand criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of assault in the second degree and criminal possessionof a weapon in the fourth degree. The defendant's argument that the prosecution failed toproffer legally sufficient evidence to support those convictions is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008];People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620,621 [1983]), we find that it was legally sufficient to support the defendant's conviction ofassault in the second degree and criminal possession of a weapon in the fourth degreebeyond a reasonable doubt (see Penal Law §§ 120.05 [2];265.01 [2]; People vChiddick, 8 NY3d 445 [2007]; People v Carter, 53 NY2d 113 [1981];People v Warren, 98 AD3d634 [2012]; People vBarresi, 80 AD3d 709, 710 [2011]; People v Williams, 79 AD3d 537, 538 [2010]).
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [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 argument that the court erred in admitting a recording of two 911emergency telephone calls placed by the complainant regarding the subject incident isunpreserved for appellate review, as the defendant failed to object to the admission of therecording at trial (see CPL 470.05 [2]; People v Reynolds, 83 AD3d 1098 [2011]; People v Stevenson, 52 AD3d746 [2008]). In any event, contrary to the defendant's contention, the Supreme Courtproperly admitted the recording into evidence under the excited utterance exception tothe hearsay rule (see People v Cantave, 21 [*2]NY3d 374, 381 [2013]; People v Johnson, 1 NY3d 302, 305-306 [2003]; People v Whitlock, 95 AD3d909, 910 [2012]; People vFields, 89 AD3d 861 [2011]).
The defendant additionally argues that the prosecutor committed prosecutorialmisconduct in his summation, and therefore deprived the defendant of a fair trial. Thedefendant's argument is not preserved for appellate review, as the defendant either didnot object to the comments, or did not object to the court's rulings or request additionalcurative instructions (see CPL 470.05 [2]; People v Comer, 73 NY2d 955[1989]; People v Tardbania, 72 NY2d 852 [1988]; People v Wright, 62 AD3d916, 917 [2009]). In any event, the defendant's claim is without merit. A prosecutorhas "broad latitude during summation, particularly when responding to the defensecounsel's summation" (People v Cariola, 276 AD2d 800, 800 [2000], citingPeople v Galloway, 54 NY2d 396[2000]; see People v Rhodes, 11 AD3d 487, 488 [2004]). In thiscase, most of the prosecutor's statements were either fair comment on the evidencepresented, fair response to the defendant's summation, or permissible rhetorical comment(see People v Garner, 27AD3d 764 [2006]; People vPearson, 29 AD3d 711 [2006]; People v Collins, 12 AD3d 33 [2004]; cf. People vAshwal, 39 NY2d 105 [1976]; People v Smith, 28 AD3d 688, 689 [2006]; People vLyking, 147 AD2d 504, 504-505 [1989]). Any error as to the remaining statementsdid not deprive the defendant of a fair trial, and any other error in this regard was eitheralleviated when the court issued curative instructions (see People v Baker, 14 NY3d266, 273-274 [2010]; People v Arce, 42 NY2d 179, 187 [1977]; People vAshwal, 39 NY2d at 111; People v Daley, 50 AD3d 1051 [2008]; People v Williams, 14 AD3d519 [2005]), or was harmless, as the evidence of the defendant's guilt wasoverwhelming and there is no significant probability that the error contributed to thedefendant's convictions (see People v Crimmins, 36 NY2d 230, 241-242[1975]).
The defendant's contention that he received ineffective assistance of counsel iswithout merit (see People vSnyder, 100 AD3d 1367, 1369 [2012]; People v Taylor, 1 NY3d 174, 175-176 [2003]). Rivera,J.P., Lott, Miller and Duffy, JJ., concur.