| People v Maitland |
| 2016 NY Slip Op 01348 [136 AD3d 1058] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ikamel Maitland, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, VictorBarall, and Marie-Claude P. Wrenn-Myers of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Shillingford, J.), rendered June 13, 2013, convicting him of criminal possession of aweapon in the second degree, attempted assault in the second degree, and unlawfulpossession of marijuana, 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, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of each crime beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight 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, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt on each count was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
Contrary to the defendant's contention, the admission of the contents of a portion ofthe telephone call to the 911 emergency number made by the complainant was properunder the excited utterance exception to the hearsay rule. The surrounding circumstances,including that the call was made immediately after the complainant was shot at,supported the conclusion "that the remarks were not made under the impetus of studiedreflection" (People v Melendez, 296 AD2d 424, 425 [2002]; see People v Cantave, 21NY3d 374, 381 [2013]; People v Johnson, 1 NY3d 302, 307-308 [2003]; Peoplev Brown, 70 NY2d 513, 519 [1987]; People v Edwards, 47 NY2d 493, 499[1979]; People v Reynolds,83 AD3d 1098, 1099 [2011]).
The defendant's challenges to the prosecutor's remarks during summation are largelyunpreserved for appellate review, because the defendant made no objection, made only ageneral objection, or made objections that were sustained without any further request forcurative instructions, and were not the basis of his motion for a mistrial (see CPL470.05 [2]; People vRomero, 7 NY3d 911, 912 [2006]; People v Barton, 110 AD3d 1089, 1090 [2013]; People v Hanson, 100 AD3d771, 772 [2012], revd on other grounds sub nom. People v Silva, 24 NY3d294 [2014]; People v Read, 97 AD3d [*2]702,703 [2012]). In any event, those remarks pertained to matters that could be fairly inferredfrom the evidence, and to the extent that some remarks were improper, they did not "riseto the level of egregious misconduct that would have deprived the defendant of a fairtrial" (People v Mason, 132AD3d 777, 778 [2015]; seePeople v Cherry, 127 AD3d 879, 880 [2015]; People v Wallace, 123 AD3d1151, 1152 [2014]). With regard to a reference by the prosecutor to priorincarceration, the objection to which is preserved, the Supreme Court gave a sufficientcurative instruction, "and the jury is presumed to have followed it" (People vRoss, 262 AD2d 429, 430 [1999]; see People v Hardy, 22 AD3d 679, 680 [2005]). Dillon,J.P., Cohen, Maltese and Barros, JJ., concur.