| People v McManus |
| 2017 NY Slip Op 03533 [150 AD3d 762] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven M. McManus, Appellant. |
Thomas R. Villecco, Jericho, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Michael J. Balch ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Delligatti,J.), rendered August 31, 2015, convicting him of sexual abuse in the first degree and criminalobstruction of breathing or blood circulation, 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 to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,349 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
Most of the defendant's claims that certain of the prosecutor's summation remarks deprivedhim of a fair trial are unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, some of the challenged portions of the prosecutor's summation were within the bounds ofpermissible comment, fair response to the defendant's attack on the credibility of thecomplainant, fair comment on the evidence and the reasonable inferences to be drawn therefrom,or permissible rhetorical comment (see People v Halm, 81 NY2d 819, 821 [1993];People v Ashwal, 39 NY2d 105, 110 [1976]; People v Ramrattan, 126 AD3d 1013, 1014 [2015]; People v Persaud, 98 AD3d 527,529 [2012]). To the extent that any prejudice may have resulted from certain remarks, it wasameliorated by the Supreme Court's curative instructions to the jury (see People v Baker, 14 NY3d 266,273-274 [2010]; People v Oliphant,117 AD3d 1085, 1087 [2014]; People v Townsend, 100 AD3d 1029, 1030-1031 [2012]), whichthe jury is presumed to have followed (see People v Guzman, 76 NY2d 1, 7 [1990]; People v Tohom, 109 AD3d 253,268 [2013]; People v Townsend, 100 AD3d at 1030). Moreover, any improper commentswere isolated and not so egregious that they deprived the defendant of a fair trial (see People v Romero, 7 NY3d911, 912 [2006]; People v Ramrattan, 126 AD3d at 1014; People v Persaud,98 AD3d at 529; People v Rogers,92 AD3d 903, 904 [2012]; People vBanyan, 60 AD3d 861 [2009]; see also People v Wragg, 26 NY3d [*2]403, 411-412 [2015]).
The defendant's contention that he is entitled to a new sentencing hearing because of allegedmisrepresentations and inaccuracies in the presentence report is without merit. Defense counselthoroughly detailed to the sentencing court all of the alleged errors and misrepresentations;consequently, the court was fully and properly apprised of the defendant's claims (see Peoplev Perry, 36 NY2d 114, 120 [1975];People v Harrington, 3 AD3d 737, 739 [2004]). Moreover, the court clearly did not basethe imposed sentence on any of the alleged errors in the presentence report (see People v Serrano, 81 AD3d753, 754 [2011]). Insofar as the defendant maintains that the alleged inaccuracies in thepresentence report will prejudice him before the parole board, we note that the sentencing courtstated that the sentencing minutes, which detail the alleged errors, would accompany thepresentence report before the parole board. Rivera, J.P., Hall, LaSalle and Connolly, JJ.,concur.