| People v Flanagan |
| 2015 NY Slip Op 07288 [132 AD3d 693] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Flanagan, Appellant. |
Barket Marion Epstein & Kearon, LLP, Garden City, N.Y. (Donna Aldea ofcounsel), for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley andYael V. Levy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Cohen, J.), rendered July 15, 2013, convicting him of conspiracy in the sixth degree andofficial misconduct (two counts), upon a jury verdict, and imposing sentence. Bydecision and order on motion dated July 15, 2013, this Court, inter alia, granted thedefendant's motion to stay execution of the judgment pending the hearing anddetermination of the appeal.
Ordered that the judgment is affirmed, and the matter is remitted to the SupremeCourt, Nassau County, for further proceedings pursuant to CPL 460.50 (5).
The defendant was charged with, inter alia, conspiracy in the sixth degree and twocounts of official misconduct in connection with alleged efforts made by certainmembers of the Nassau County Police Department, including the defendant, to "preventthe arrest" of Zachary Parker for the theft of certain property from his high school, due toParker's father's connections in the police department. After a jury trial, the defendantwas convicted of conspiracy in the sixth degree and official misconduct (twocounts).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibilityto conduct 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 comments made by the prosecutor during heropening statement and summation were improper and deprived him of a fair trial isunpreserved for appellate review, since the defendant either failed to object to theremarks he now challenges, made only a general one-word objection, or failed to requestadditional instructions when the trial court [*2]gavecurative instructions, and his motion for a mistrial, made after the completion ofsummations, was untimely (see CPL 470.05 [2]; People v Martin, 116 AD3d981 [2014]; People vAllen, 114 AD3d 958 [2014]). In any event, most of the challenged remarkswere either fair comment upon the evidence, fair response to the arguments made bydefense counsel in summation, or permissible rhetorical comment (see People vGalloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105,109-110 [1976]). To the extent that some of the prosecutor's remarks made during heropening statement and summation were improper, those remarks did not deprive thedefendant of a fair trial, and any other error in this regard was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that anyerror contributed to the defendant's conviction (see People v Crimmins, 36 NY2d230, 241-242 [1975]; People vRoscher, 114 AD3d 812, 813 [2014]; People v Walston, 196 AD2d 903[1993]).
The defendant also contends that he was deprived of the right to a fair trial by theadmission of certain testimony concerning an incident in which a vehicle driven byParker was pulled over for speeding. However, since the defendant made no request tostrike the contested testimony after the trial court ruled that further testimony regardingthat incident was inadmissible, the defendant has abandoned this claim (see People vGraves, 85 NY2d 1024, 1027 [1995]; People v Forte, 70 AD3d 963, 964 [2010]; People v Midura, 54 AD3d877 [2008]). In any event, any error in this regard did not deprive the defendant of afair trial.
There is no merit to the defendant's contention that the Supreme Court erred inpermitting the People to elicit hearsay testimony from a witness relating to an email sentby that witness concerning her belief that, among other things, members of the policedepartment were "trying to bury the case," as that testimony was admissible under the"state-of-mind" exception to the hearsay rule (see People v Leath, 98 AD3d 690, 691 [2012]; People vBoyd, 256 AD2d 350 [1998]). The defendant's contention that the court erred infailing to issue a limiting instruction with respect to that testimony is unpreserved forappellate review (see CPL 470.05 [2]; People v Carrenard, 56 AD3d 486, 487-488 [2008]). In anyevent, any error in this regard was harmless, since there was overwhelming evidence ofthe defendant's guilt, and no significant probability that any error contributed to thedefendant's conviction (see People v Crimmins, 36 NY2d at 241-242; People v Banks, 27 AD3d953, 955 [2006]). Further, the defendant's contention that subsequent testimonyfrom other witnesses concerning the subject email deprived him of the right to a fair trialis unpreserved for appellate review and, in any event, without merit.
The defendant's remaining contentions are without merit. Hall, J.P., Cohen,Hinds-Radix and LaSalle, JJ., concur.