| People v Weathers |
| 2015 NY Slip Op 00399 [124 AD3d 702] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dayon Weathers, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Kings County (Garnett,J.), rendered August 15, 2012, convicting him of criminal possession of a weapon in thesecond degree (Penal Law 265.03 [3]), 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, upon our independent reviewpursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant contends that he was deprived of a fair trial because the People, intheir opening statement, referred to a witness and certain evidence which they failed topresent at trial. In such circumstances, "the general rule is that, absent bad faith or undueprejudice, a trial will not be undone" (People v Bramble, 81 AD3d 968, 968 [2011] [internalquotation marks omitted]; People v McKnight, 72 AD3d 846 [2010], affd 16NY3d 43 [2010]). Here, neither bad faith nor undue prejudice was established.
The defendant's contention that he was deprived of a fair trial as a result of certainremarks made during the People's summation is largely unpreserved for appellate review(see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]). In any event,the challenged summation remarks were either fair comment on the evidence (seePeople v Ashwal, 39 NY2d 105, 109-111 [1976]; People v Edwards, 120 AD3d1435 [2014]), or responsive to arguments and theories presented in the defensesummation (see People v Galloway, 54 NY2d 396 [1981]; People v McCoy, 89 AD3d1110, 1110 [2011]; Peoplev Carey, 67 AD3d 925, 925 [2009]; People v Crawford, 54 AD3d 961 [2008]). Moreover,while it was error for the prosecutor to describe a witness as "the only person that had theguts to come in and testify" and that "she was scared for her life," the statements did notdeprive the defendant of a fair trial, and any error in this regard was alleviated when thecourt issued curative instructions (see People v Oliphant, 117 AD3d 1085[2014]).
[*2] The defendant's contention that hewas deprived of a fair trial as a result of certain testimony elicited from a detective isunpreserved for appellate review. In any event, the line of questioning and the detective'stestimony were properly offered for the relevant, nonhearsay purpose of establishing thereasons behind the detective's actions, and to complete the narrative of events leading tothe defendant's arrest (seePeople v Ragsdale, 68 AD3d 897, 897-898 [2009]; People v Chandler, 59 AD3d562 [2009]; People vMendoza, 35 AD3d 507 [2006]).
Further, contrary to the defendant's contention, the admission of evidence at trialregarding an eyewitness's earlier out-of-court photo-array identification of the defendantdid not deny him a fair trial since defense counsel opened the door to the issue during hiscross-examination of the eyewitness and of a police detective (see People vMassie, 2 NY3d 179 [2004]; People v Lago, 60 AD3d 784 [2009]; People v Vasquez, 33 AD3d636 [2006]).
The defendant was not deprived of the effective assistance of counsel (see Peoplev Rivera, 71 NY2d 705, 708 [1988]; People v Thomas, 276 AD2d 570[2000]). Dillon, J.P., Hinds-Radix, Maltese and Barros, JJ., concur.