| People v Negrin |
| 2016 NY Slip Op 05175 [140 AD3d 1192] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Negrin, Appellant. |
Lynn W. L. Fahey, New York, NY (Patricia Pazner of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, VictorBarall, and Joyce Adolfsen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered December 22, 2011, convicting him of murder in the seconddegree, 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 [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 next contends that the Supreme Court erred in permitting a detectiveto testify about the circumstances under which he discovered the defendant's nickname.Specifically, the defendant contends that the detective's testimony conveyed to the jurythat a nontestifying witness had implicated him in the crime. To the extent that thedefendant's claim is based on his rights under the Confrontation Clause of the SixthAmendment to the United States Constitution (see US Const 6th Amend;Crawford v Washington, 541 US 36 [2004]), it is not preserved for appellatereview, inasmuch as the defendant objected to the testimony only on the ground that itconstituted hearsay (see CPL 470.05 [2]; People v Prince, 128 AD3d 987, 987 [2015]). Admission ofthe testimony without a limiting instruction was, however, error. We note that after thePeople contended that the evidence was offered to explain the course of the policeinvestigation, and not for its truth, the court rejected defense counsel's request that itexplain that limited purpose to the jury. In refusing that request, the court erred.Nevertheless, the error was harmless, as the evidence of the defendant's guilt wasoverwhelming, and there was no significant probability that the error affected the verdict(see People v Crimmins, 36 NY2d 230, 242 [1975]).
The Supreme Court also properly admitted into evidence portions of recordings of[*2]telephone calls made by the defendant from prison,which were " 'indicative of a consciousness of guilt, and hence of guiltitself' " (People v Bennett, 79 NY2d 464, 469 [1992], quoting Peoplev Reddy, 261 NY 479, 486 [1933]; see People v Case, 113 AD3d 872, 873 [2014]). Moreover,contrary to the defendant's claim, the admission of these recordings did not violate hisSixth Amendment right to counsel (see People v Johnson, 27 NY3d 199 [2016]; seegenerally United States v Henry, 447 US 264 [1980]).
The defendant's contention that the prosecutor's summation remarks constitutedreversible error because she allegedly vouched for the credibility of witnesses, purportedto instruct the jury on the law, and made inflammatory comments is largely unpreservedfor appellate review, since he made only a general objection, failed to request curativeinstructions, and did not timely move for a mistrial on this ground (see CPL470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986]; People v Salnave, 41 AD3d872, 874 [2007]). In any event, the comments alleged to be prejudicial were eitherfair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]),responsive to arguments and theories presented in the defense summation (see Peoplev Galloway, 54 NY2d 396 [1981]), or harmless (see People v Crimmins, 36NY2d at 241-242; People v Hill, 286 AD2d 777, 778 [2001]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Balkin, J.P., Roman, Cohenand Hinds-Radix, JJ., concur.