| People v Rivera |
| 2015 NY Slip Op 05703 [130 AD3d 655] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alex Rivera, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered August 9, 2011, convicting him of robbery in the first degree(three counts), burglary in the first degree, and burglary in the third degree, upon a juryverdict, and sentencing him to consecutive indeterminate terms of 23 years to lifeimprisonment on each conviction of robbery in the first degree, to run concurrently withan indeterminate term of 23 years to life imprisonment on the conviction of burglary inthe first degree and an indeterminate term of 3
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentences imposed shall run concurrently with each other;as so modified, 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]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 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 CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 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 notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that certain of the prosecutor's summation commentsconstituted reversible error because the prosecutor, allegedly, vouched for the credibilityof witnesses, misrepresented the facts, shifted the burden of proof, denigrated thedefense, and inflamed the jury, is unpreserved for appellate review because the defendantfailed to object, request curative instructions, or timely move for a mistrial on thesegrounds (see CPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986];People v Salnave, 41 AD3d872, 874 [2007]; People vWright, 5 AD3d 873, 875 [2004]). In any [*2]event, the challenged comments were either fair commenton the evidence (see People v Ashwal, 39 NY2d 105 [1976]), responsive toarguments and theories presented on the defense summation (see People vGalloway, 54 NY2d 396 [1981]; People v Moore, 29 AD3d 825, 825-826 [2006]), orharmless under the circumstances (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]).
Contrary to the defendant's contention, the sentencing court's imposition ofconsecutive sentences was not vindictive (cf. North Carolina v Pearce, 395 US711, 731 [1969]). However, the sentences imposed were excessive to the extent indicatedherein.
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Dillon, J.P., Dickerson, Chambers and Barros, JJ.,concur.