| People v Pringle |
| 2016 NY Slip Op 01351 [136 AD3d 1061] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marc Pringle, Appellant. |
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Jill A. Gross Marks of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered October 2, 2012, convicting him of criminal possession of a weaponin the second degree (two counts) and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was convicted of criminal possession of a weapon in the seconddegree (two counts) and criminal possession of a weapon in the third degree, based upon,among other things, the testimony of two police officers that they recovered a loaded,operable, and defaced firearm from the defendant's pocket during a stop and frisk on asidewalk in Queens.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Kolupa, 13 NY3d 786, 787 [2009]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish, beyond a reasonable doubt, the defendant's guilt ofcriminal possession of a weapon in the second degree (two counts) (see PenalLaw § 265.03 [1] [b]; [3]; Penal Law § 265.15 [4]; People v Galindo, 23 NY3d719, 722-724 [2014]) and criminal possession of a weapon in the third degree(see Penal Law § 265.02 [3]). Contrary to the defendant'scontention, the People presented evidence disproving, beyond a reasonable doubt, thedefense of temporary and lawful possession of a weapon (see People v Rodriguez, 122AD3d 1425, 1426-1427 [2014]; People v Sooknanan, 92 AD3d 810, 810 [2012]; Peoplev Ortiz, 172 AD2d 696 [1991]). Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
[*2] The defendant argues that he was deprived of theeffective assistance of counsel as a result of his trial counsel's failure to raise at thesuppression hearing the allegedly meritorious contention that the anonymous call did notsupply reasonable suspicion for the stop and frisk. However, the evidence at trialestablished that the call was made by an identified citizen informant, who, unlike ananonymous caller, is presumed to be reliable (see generally Florida v J.L., 529 US266, 270 [2000]; People v Parris, 83 NY2d 342, 350 [1994]). Accordingly, therecord reveals a legitimate explanation for the alleged instance of ineffective assistanceby the defendant's trial counsel (see generally People v Benevento, 91 NY2d 708,709 [1998]; People vPrince, 128 AD3d 987, 988 [2015]; cf. People v Clermont, 22 NY3d 931, 933-934[2013]).
The defendant's contention that the prosecutor improperly cross-examined himduring the trial regarding his prearrest silence and used his prearrest silence to impeachhis credibility during summation is unpreserved for appellate review (see CPL470.05 [2]; People vCollins, 109 AD3d 482, 482 [2013]; People v Gill, 54 AD3d 965, 965-966 [2008]; People vCaicedo, 173 AD2d 630, 630 [1991]). In any event, to the extent that the prosecutor'squestions and remarks concerned the defendant's conduct in failing to contact the policeor flag down the police officers after he purportedly found the gun, they were notimproper (see People vMulligan, 118 AD3d 1372, 1374 [2014]; People v Guzman, 259 AD2d364, 365 [1999]; see also Peoplev Alls, 117 AD3d 1190, 1191-1192 [2014]; People v Curry, 85 AD3d 1209, 1211 [2011]). Further, anyerror resulting from the prosecutor's use of the defendant's prearrest silence forimpeachment purposes was harmless, because there was overwhelming evidence of thedefendant's guilt and no significant probability that the error contributed to theconviction (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Nelson, 69 AD3d762, 763 [2010]; cf. Peoplev Williams, 25 NY3d 185, 194 [2015]).
The defendant's contention, raised in his main brief and his pro se supplementalbrief, that he was deprived of a fair trial by certain improper remarks made by theprosecutor during his summation is also unpreserved for appellate review (seeCPL 470.05 [2]; People vTaylor, 120 AD3d 519, 520 [2014]). In any event, most of the challengedremarks were within the broad bounds of rhetorical comment permissible in closingarguments, and constituted fair response to arguments made by defense counsel insummation or fair comment on the evidence (see People v Halm, 81 NY2d 819,821 [1993]; People v Galloway, 54 NY2d 396, 399-401 [1981]; People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Barber, 133 AD3d 868, 871 [2015]). Moreover,contrary to the defendant's contention, any instances of prosecutorial misconduct duringcross-examination and summation were not, either individually or collectively, soegregious as to deprive the defendant of a fair trial (see People v Barber, 133AD3d at 871; People v Stevenson, 129AD3d 998, 999 [2015]; cf.People v Riback, 13 NY3d 416, 423 [2009]; People v Calabria, 94 NY2d 519, 522 [2000]). Defense counsel's failure to object to the challenged questions and summationremarks did not constitute ineffective assistance of counsel (see People v Wragg, 26 NY3d403 [2015]; People vSivertson, 129 AD3d 1467, 1469 [2015], lv granted 26 NY3d 1092;People v Stevenson, 129 AD3d at 999). The record reveals that defense counselprovided meaningful representation (see People v Taylor, 1 NY3d 174, 176-177 [2003];People v Benevento, 91 NY2d at 712; People v Cruz, 127 AD3d 987, 988 [2015]). The defendant's contention, raised in his pro se supplemental brief, that the Peoplewere improperly permitted to present evidence of uncharged crimes is without merit(see People v Pope, 96 AD3d 1231