| People v Terry |
| 2014 NY Slip Op 08049 [122 AD3d 882] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Chris Terry, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (LeonardJoblove, Seth M. Lieberman, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Reichbach, J.), rendered April 5, 2011, convicting him of robbery in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
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 People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that certain remarks made by the prosecutor duringsummation were improper is unpreserved for appellate review. Defense counsel eitherdid not object to the remarks at issue or made only a general objection (see CPL470.05 [2]; People v Tonge, 93 NY2d 838, 839-840 [1999]; People v Rios, 105 AD3d873 [2013]; People vKennedy, 101 AD3d 1045, 1046 [2012]). In any event, the contention is withoutmerit, as the remarks were within the broad bounds of rhetorical comment permissible inclosing arguments, fair response to arguments made by defense counsel in summation,fair comment upon the evidence, or otherwise did not deprive the defendant of a fair trial(see People v Bailey, 58 NY2d 272, 277 [1983]; People v Galloway, 54NY2d 396, 400 [1981]; People v Ashwal, 39 NY2d 105, 109 [1976]; Peoplev Rios, 105 AD3d at 873; People v Kennedy, 101 AD3d at 1045).
The defendant's contention, raised in his pro se supplemental brief, that theAllen charges (see Allen v United States, 164 US 492 [1896]) werecoercive is unpreserved for appellate review due to his failure to object at trial(see CPL 470.05 [2]; People v Auguste, 294 AD2d 371, 371-372 [2002];People v Ramkisson, 245 AD2d 393 [1997]). In any event, the charges wereproper, as the Supreme Court did not attempt to persuade jurors to abandon their beliefsor convictions, did not attempt to coerce [*2]dissentingjurors to reach a particular verdict, and did not attempt to shame the jurors into reachingany verdict (see People vMuirhead, 110 AD3d 833, 834-835 [2013]; People v Gonzalez, 70 AD3d 855, 856 [2010]; People v McKenzie, 48 AD3d594, 595 [2008]).
The Supreme Court's determination, outside of the defendant's presence, to seekclarification of what the deliberating jury wanted when it sent a note requesting to hearthe court's instruction "on what the law is," did not involve the giving of "information orinstruction" within the meaning of CPL 310.30. "Moreover, this ministerialcommunication was wholly unrelated to the substantive legal or factual issues of thetrial" (People v Harris, 76 NY2d 810, 812 [1990]; see People v Torres,174 AD2d 586, 587 [1991], affd 80 NY2d 944 [1992]). In addition, the courtimmediately repeated the jury's request in the defendant's presence, before asking the juryfor clarification. Thus, there is no merit to the defendant's pro se claim that he wasimproperly excluded from a material stage of his trial.
The defendant's contention that the Supreme Court improperly permitted PoliceOfficer Dennis Steele to testify that he recognized the defendant from a "wanted" posteris waived, as the defense had elicited the same testimony on cross-examination (see People v Jean, 117 AD3d875, 878 [2014]; People vStalter, 77 AD3d 776, 777 [2010]; People v Grant, 54 AD3d 967 [2008]). The defendant'scontention that the testimony of Officer Steele, Detective William Puskas, and DetectiveFrank Micelli improperly bolstered the complainant's identification of him is unpreservedfor appellate review (see CPL 470.05 [2]; People v Bevans, 84 AD3d 827 [2011]; People v Melendez, 51 AD3d1040, 1041 [2008]; Peoplev Sealy, 35 AD3d 510 [2006]). In any event, the testimony of Officer Steele andDetective Puskas was properly admitted "to explain police actions and the sequence ofevents leading to the defendant's arrest" (People v Amaya, 103 AD3d 907, 908 [2013]; see People v Bernardez, 85AD3d 936, 938 [2011]; People v Walker, 70 AD3d 870, 871 [2010]), while thetestimony of Detective Micelli was properly admitted to enable the jury to evaluatewhether the complainant had sufficient opportunity to observe the crime in order toreport an accurate description of the perpetrator to the police (see People vHuertas, 75 NY2d 487, 493 [1990]; People v Bryan, 50 AD3d 1049, 1051 [2008]).
The defendant received the effective assistance of counsel (see Strickland vWashington, 466 US 668, 688, 694 [1984]; People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d277, 283 [2004]). Defense counsel was not ineffective for failing to make argumentsor motions that had little or no chance of success (see People v Caban, 5 NY3d at152; People v Stultz, 2 NY3d at 287).
The defendant's remaining contention in his pro se supplemental brief is unpreservedfor appellate review and, in any event, without merit (see People v Binning, 108 AD3d 639 [2013]). Dillon, J.P.,Chambers, Cohen and Maltese, JJ., concur.