| People v Elder |
| 2017 NY Slip Op 05840 [152 AD3d 787] |
| July 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Corey Elder, Appellant. |
Lynn W. L. Fahey, New York, NY (Meredith S. Holt of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, Brooke E. Barnes, and Amy Markel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered January 15, 2015, convicting him of criminal possession of stolen property in thefourth degree and unauthorized use of a motor vehicle in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of criminal possession of stolen property in the fourth degree(see Penal Law § 165.45 [5]) and unauthorized use of a motor vehicle in thethird degree (see Penal Law § 165.05 [1]) for possessing the complainant'sminivan.
The defendant's arguments regarding the legal sufficiency of the evidence are unpreserved forappellate review, except to the extent that he contends that there was insufficient evidence of theknowledge element of the crimes (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of a fair trial by the prosecutor'smisstatement, during summation, of the law concerning the knowledge element of criminalpossession of stolen property in the fourth degree is unpreserved for appellate review, since thedefendant did not object to the remarks (see People v Giuca, 58 AD3d 750, 751 [2009]). In any event, thedefendant's contention is without merit. Those remarks, and the reference by the prosecutor to the[*2]jury's function, the objection to which is preserved forappellate review, could not have been interpreted by the jury as an instruction on the law,because the Supreme Court repeatedly advised the jurors that it would instruct them on the lawand subsequently gave correct instructions on the law (see People v Labossiere, 148 AD3d 1183, 1184 [2017]; Peoplev Giuca, 58 AD3d at 751).
Moreover, contrary to the defendant's contention, the prosecutor's reference to a credit cardrecovered from the vehicle did not violate an evidentiary ruling. In any event, any prejudiceresulting from the remark was alleviated by the Supreme Court's actions in immediately strikingthe comment from the record and providing curative instructions to the jury, which instructionsthe jury is presumed to have followed (see People v Macaluso, 144 AD3d 947, 947 [2016]; People v Maitland, 136 AD3d1058, 1059 [2016]).
The defendant's remaining challenges to remarks made by the prosecutor during his openingstatement and summation are unpreserved for appellate review, since the defendant either failedto object to the remarks at issue, or made only general objections (see People v Romero, 7 NY3d911, 912 [2006]; People vBaez, 137 AD3d 805, 805 [2016]). In any event, the majority of the summationcomments were either within the bounds of rhetorical comment permissible in closing argument,fair response to arguments made by defense counsel in summation, or fair comment on theevidence and reasonable inferences to be drawn therefrom (see People v Morrow, 143 AD3d 919, 921 [2016]; People v Young, 141 AD3d 551,552 [2016]; People v Marcus, 112AD3d 652, 653 [2013]). Although the prosecutor vouched in the summation for thecredibility of a police witness based on his position as a police officer (see People v Cantoni, 140 AD3d782, 787 [2016]; People vMehmood, 112 AD3d 850, 853 [2013]), and improperly suggested in his openingstatement that the indictment constituted evidence of the defendant's guilt (see People v Liverpool, 35 AD3d506, 506 [2006]; People v Logan, 221 AD2d 662, 663 [1995]), those comments wereeither sufficiently addressed by the Supreme Court's instructions to the jury or not so egregious asto have deprived the defendant of a fair trial (see People v Labossiere, 148 AD3d at 1185;People v Bunting, 146 AD3d794, 795 [2017]; People vBranch, 63 AD3d 631, 632 [2009]; People v Logan, 221 AD2d at 663).
The defendant's contention that the Supreme Court failed to adequately instruct the jury as toreasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People vRobinson, 88 NY2d 1001, 1001-1002 [1996]). In any event, the defendant's contention iswithout merit because the jury instructions, taken as a whole, conveyed the correct standard to beemployed with respect to reasonable doubt (see People v Fields, 87 NY2d 821, 823[1995]; People v Cutting, 150 AD3d873 [2017]; People v Page, 137AD3d 817, 817 [2016]; People vRomero, 123 AD3d 1147, 1148 [2014], affd 27 NY3d 981 [2016]).
The defendant's further contention that the Supreme Court failed to meaningfully respond toa jury note requesting clarification is unpreserved for appellate review (see People v Clark, 28 NY3d 556,566 [2016]) and, in any event, without merit (see People v Malloy, 55 NY2d 296,301-303 [1982]; People v Ariza, 77AD3d 844, 845 [2010]).
Contrary to the defendant's contention, his trial counsel's failure to preserve certain claims forappellate review did not constitute ineffective assistance of counsel (see People v Wragg, 26 NY3d403, 411-412 [2015]; People vAlphonso, 144 AD3d 1168, 1169 [2016]; People v Baught, 138 AD3d 1129, 1130 [2016]). The recordreveals that counsel provided meaningful representation (People v Benevento, 91 NY2d708, 712 [1998]; People v Cruz, 127AD3d 987, 988 [2015]). Rivera, J.P., Hall, Barros and Brathwaite Nelson, JJ., concur.