| People v Fuhrtz |
| 2014 NY Slip Op 08454 [123 AD3d 735] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Domincio Fuhrtz, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Denson of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M.Castellano, Johnnette Traill, Jeanette Lifschitz, and Anastasia Spanakos of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered November 7, 2012, convicting him of rape in the first degree andcriminal sexual act in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gumbs, 58 AD3d641 [2009]; People vCrawford, 38 AD3d 680 [2007]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that the evidence was legally sufficient to establish the defendant's guilt of rapein the first degree and criminal sexual act in the first degree beyond a reasonable doubt(see Penal Law §§ 130.35 [1]; 130.50 [1]).
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 jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfiedthat the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that various questions posed by the prosecutor duringcross-examination and certain remarks made by the prosecutor during his openingstatement and summation deprived him of due process is largely unpreserved forappellate review (see CPL 470.05 [2]; People v Edwards, 118 AD3d 909 [2014]). In any event,the challenged cross-examination questions were not improper and the majority of thechallenged remarks made during summation were responsive to arguments made by thedefense or remained within the "broad bounds of rhetorical comment permissible inclosing argument" (People v Galloway, 54 NY2d 396, 399 [1981]; see People v Thompson, 118AD3d 822 [2014]; People vBurgos, 97 AD3d 689 [2012]). Although the challenged remarks made duringthe opening statement and some of the challenged remarks made during summation wereimproper, they were either stricken by the Supreme Court, thereby limiting any [*2]resulting prejudice (see generally People v Guay, 72 AD3d 1201 [2010],affd 18 NY3d 16 [2011]), or were not so flagrant or pervasive as to deprive thedefendant of a fair trial (seePeople v Ward, 106 AD3d 842 [2013]; People v Persaud, 98 AD3d 527 [2012]).
The defendant's contention that his trial counsel's failure to preserve certain claimsfor appellate review constituted ineffective assistance of counsel is without merit (see People v Ennis, 11 NY3d403, 415 [2008]; People vStultz, 2 NY3d 277, 287 [2004]; People v Howard, 120 AD3d 1259 [2014]). Balkin, J.P.,Hall, Austin and Barros, JJ., concur.