| People v Gurdon |
| 2017 NY Slip Op 06660 [153 AD3d 1430] |
| September 27, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Garnet Gurdon, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Antara D. Kanth of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica,J.), rendered December 2, 2015, convicting him of attempted rape in the first degree (twocounts), sexual abuse in the first degree, and endangering the welfare of a child, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the verdict of guilt was not against the weight of theevidence (see CPL 470.15 [5]; see People v Romero, 7 NY3d 633, 640-641 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]).
The defendant's contention that the Supreme Court erred in admitting testimony of thecomplainant's outcry to her mother and grandmother is unpreserved for appellate review since noobjection was raised to the admission of that testimony (see CPL 470.05 [2]; People v Renaud, 137 AD3d 818,820 [2016]; People v Honghirun,133 AD3d 882, 883 [2015], affd29 NY3d 284 [2017]; People vJean, 117 AD3d 875, 878 [2014]; People v Stalter, 77 AD3d 776, 777 [2010]). Moreover, thedefendant's contention was waived when defense counsel elicited the challenged testimony oncross-examination (see People v Renaud, 137 AD3d at 820; People v Honghirun,133 AD3d at 883; People v Jean, 117 AD3d at 878; People v Stalter, 77 AD3d at777), apparently as a trial strategy to use the complainant's belated disclosure of the crimesagainst her to demonstrate that she was unworthy of belief (see People v Honghirun, 29NY3d 284 [2017]).
The propriety of the prosecutor's comments during summation was, for the most part,unpreserved for appellate review, and, in any event, the prosecutor's comments did not deprivethe defendant of a fair trial. It is "the right of counsel during summation 'to comment upon everypertinent matter of fact bearing upon the questions the jury have to decide' " (People vAshwal, 39 NY2d 105, 109 [1976], quoting Williams v Brooklyn El. R.R. Co., 126NY 96, 102 [1891]; see People v Jones, 294 AD2d 517, 517 [2002]). Comments made bya prosecutor in summation are proper if they constitute a fair response to arguments raised by thedefense (see People v Galloway, 54 NY2d 396, 399 [1981]; People v Lugg, 124 AD3d 679,680 [2015]; People v Green, 90AD3d 948, 948 [2011]; People vBarnes, 33 AD3d 811, 812 [2006]). Further, "a prosecutor may engage in fair commenton the evidence and the inferences to be [*2]drawn therefrom"(People v Jones, 294 AD2d at 517; see People v Brown, 139 AD3d 964, 966 [2016]). However, insummation, the prosecutor must stay within the four corners of the evidence and avoid irrelevantand inflammatory comments that have a tendency to prejudice the jury against the accused (see People v Singh, 128 AD3d860, 863 [2015]).
Here, the prosecutor's comment that the complainant should be believed because she hadbeen interviewed by law enforcement authorities and testified before the grand jury, and because"she has never wavered," was a fair response to the defense counsel's argument that thecomplainant's account was not plausible, and may have involved "implanted memories." Theprosecutor's statement that the complainant had no motive to lie was a fair response to thedefense counsel's argument in summation that "any little thing could set a kid off" based uponsmall or big grievances (see People vMarcus, 112 AD3d 652 [2013]; People v Bolden, 216 AD2d 45 [1995];People v Glenn, 140 AD2d 623 [1988]). The prosecutor's argument that there was noevidence of any reason for the prosecution witnesses to lie was improper (see People vSingh, 128 AD3d at 863), but under the circumstances of this case, it did not deprive thedefendant of a fair trial. Similarly, the prosecutor's comments that the complainant would foreverassociate the end of her mother's pregnancy with the defendant's sexual abuse were designed toappeal to the jury's sympathy and were, therefore, improper (see People v Casiano, 148 AD3d 1044, 1045 [2017]; People v Redd, 141 AD3d 546,550 [2016]; People v Singh, 128 AD3d at 864), but did not deprive the defendant of a fairtrial. Moreover, under the circumstances of this case, the cumulative effect of the errors notedabove did not deprive the defendant of a fair trial.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Austin, J.P., Hinds-Radix, Duffy and Connolly, JJ., concur.