| People v Ramrattan |
| 2015 NY Slip Op 02506 [126 AD3d 1013] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jerry Ramrattan, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered January 4, 2012, convicting him of rape in the first degree,unlawful imprisonment in the second degree, perjury in the first degree (three counts),conspiracy in the fifth degree (two counts), tampering with a witness in the third degree,and falsely reporting an incident in the third degree (three counts), upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his right to testify before the grandjury because the People failed to keep an implicit promise to give him until a certain dateto decide whether he wished to testify. This contention is unpreserved for appellatereview, since the defendant failed to raise it as a ground for the dismissal of theindictment (see People v Pressley, 94 NY2d 935, 936-937 [2000]; People vBrooks, 247 AD2d 486 [1998]). In any event, the contention is without merit. Theprosecutor notified defense counsel on May 1, 2009, of his intention to present the matterto the grand jury on May 4, 2009. After speaking with defense counsel, the prosecutoragreed to delay presenting the matter until May 6, 2009. This provided the defendantwith a reasonable amount of time "to exercise his right to appear as a witness" before thegrand jury (CPL 190.50 [5] [a]; see People v Pugh, 207 AD2d 503 [1994]).
There is no merit to the defendant's contention that the Supreme Court should haveinstructed the jury that a certain prosecution witness was an accomplice as a matter oflaw. " '[I]f the undisputed evidence establishes that a witness is an accomplice,the jury must be so instructed but, if different inferences may reasonably be drawn fromthe proof regarding complicity . . . the question should be left to the jury forits determination' " (People v Sweet, 78 NY2d 263, 266 [1991], quotingPeople v Basch, 36 NY2d 154, 157 [1975]). Here, since the evidence wassusceptible of more than one interpretation, the Supreme Court properly submitted thismatter to the jury to determine as a factual issue (see People v Besser, 96 NY2d136, 147 [2001]; People vCardona, 17 AD3d 692, 693 [2005]; People v Cirigliano, 15 AD3d 672, 673 [2005]).
The defendant's contention that certain remarks made by the prosecutor during [*2]summation deprived him of a fair trial is unpreserved forappellate review, since he either failed to object to the remarks at issue, made only ageneral objection, or failed to request further curative relief when his objections weresustained, and he failed to raise the specific grounds he now asserts on appeal in hismotion for a mistrial (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]; People v Martin, 116 AD3d981, 982 [2014]; People vStewart, 89 AD3d 1044, 1045 [2011]; People v Paul, 82 AD3d 1267, 1267-1268 [2011]). In anyevent, most of the challenged portions of the prosecutor's summation were within thebounds of permissible comment, fair response to the defendant's attack on the credibilityof the People's complaining witness, fair comment on the evidence and the reasonableinferences to be drawn therefrom, or permissible rhetorical comment (see People vHalm, 81 NY2d 819, 821 [1993]; People v Galloway, 54 NY2d 396, 399[1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Ariza, 77 AD3d844, 846 [2010]; People vBarnes, 33 AD3d 811, 812 [2006]). To the extent that any prejudice may haveresulted from certain remarks, it was ameliorated by the trial court's curative instructionsto the jury (see People vBaker, 14 NY3d 266, 273-274 [2010]; People v Oliphant, 117 AD3d 1085, 1087 [2014]; People v Townsend, 100 AD3d1029, 1030-1031 [2012]), which the jury is presumed to have followed (seePeople v Guzman, 76 NY2d 1, 7 [1990]; People v Tohom, 109 AD3d 253, 268 [2013]; People vTownsend, 100 AD3d at 1030). Moreover, any improper comments were isolatedand not so egregious as to have deprived the defendant of a fair trial (see People vRomero, 7 NY3d at 912; cf.People v Spann, 82 AD3d 1013, 1015-1016 [2011]). Skelos, J.P., Balkin, Halland Maltese, JJ., concur.