| People v Deshane |
| 2018 NY Slip Op 02680 [160 AD3d 1216] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Leonard P. Deshane Jr., Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered March 28, 2016, upon a verdict convicting defendant of the crimes of burglary inthe second degree and petit larceny.
Defendant was charged in a multicount indictment stemming from an incident where hebroke into the victim's home and stole certain property. After a jury trial, defendant was foundguilty of burglary in the second degree and petit larceny. County Court thereafter sentenceddefendant as a second felony offender to an aggregate prison term of eight years, to be followedby five years of postrelease supervision. This appeal by defendant ensued.
Defendant's sole contention on appeal is that a new trial should be ordered due to theprosecutor's improper remarks during summation. In determining whether a defendant wasdeprived of a fair trial due to alleged improper comments, "we consider [their] severity andfrequency, the corrective action taken, if any, and whether the result would likely have been thesame in the absence of the conduct" (People v Casanova, 119 AD3d 976, 979 [2014]; see People v De Vito, 21 AD3d696, 700 [2005]). "[I]f the misconduct is such that the defendant suffered substantialprejudice, resulting in a denial of due process," reversal is warranted (People v Goldston, 126 AD3d1175, 1179 [2015] [internal quotation marks and citation omitted], lv denied 25NY3d 1201 [2015]; see People vRupnarine, 140 AD3d 1204, 1205-1206 [2016]; People v Hunt, 39 AD3d 961, 963 [2007], lv denied 9NY3d 845 [2007]).
Contrary to defendant's assertion, the prosecutor did not improperly vouch for the credibilityof certain witnesses. During his summation, defense counsel attempted to cast doubt [*2]on the credibility of the witnesses, specifically stating with respectto one witness, "Is he credible?" As to another witness, defense counsel brought to the jury'sattention the witness' prior convictions and further stated, "Why did he lie to you on the stand?"The prosecutor's comments during his summation, in our view, were a proper response to defensecounsel's attacks on the credibility of the witnesses (see People v Heiserman, 127 AD3d 1422, 1424 [2015]; People v Pine, 82 AD3d 1498,1502 [2011], lv denied 17 NY3d 820 [2011]; People v Williamson, 77 AD3d 1183, 1184-1185 [2010]). In anyevent, County Court sustained defendant's objections thereto and instructed the jury to disregardthem (see People v Milford, 118AD3d 1166, 1171 [2014], lv denied 23 NY3d 1065 [2014]; People v Simmons, 111 AD3d975, 980 [2013], lv denied 22 NY3d 1203 [2014]).
With respect to the prosecutor's remark that defense counsel was engaging in "misdirection,"such remark was a fair response to defense counsel's summation (see People v Grady, 40 AD3d1368, 1374-1375 [2007], lv denied 9 NY3d 923 [2007]; People v Greene, 13 AD3d 991,993 [2004], lv denied 5 NY3d 789 [2005]; People v Barber, 13 AD3d 898, 900-901 [2004], lv denied 4NY3d 796 [2005]). Likewise, the prosecutor's comment about the absence of a formercodefendant from trial was in response to the remarks by defense counsel. While defendant alsotakes issue with the prosecutor's comment that one witness was "brutally honest," County Courtproperly concluded that such remark was fair comment on the evidence, namely the witness'forthright testimony about her involvement in the burglary and her past addiction to drugs (see People v Anderson, 149 AD3d1407, 1414 [2017], lv denied 30 NY3d 947 [2017]; People v Pine, 82 AD3dat 1502).
Although the prosecutor's remark that defense counsel was "championing the art ofdeception" was better off left unsaid, County Court sustained defendant's objection thereto andreminded the prosecutor that he could comment on the evidence and not defense counsel (see People v Wlasiuk, 136 AD3d1101, 1103 [2016], lv denied 27 NY3d 1009 [2016]). We further note that defendantdid not request any additional curative instructions (see People v Carney, 110 AD3d 1244, 1245 [2013]). As to anyimproper remarks verbalized by the prosecutor that were displayed on his visual aids, weperceive no prejudice given that County Court sustained defendant's objections thereto, directedthe prosecutor to remove the objected-to information and instructed the jury to disregard them(see People v Simmons, 111 AD3d at 980; People v Mateo, 101 AD3d 1458, 1460 [2012], lv denied 21NY3d 913 [2013]).
Defendant's remaining grievances with the prosecutor's summation have been considered andlack merit. Additionally, given the strength of the evidence adduced against defendant at trial, wefind that the result would have likely been the same, even if the prosecutor had delivered aperfect summation (see People vGoldston, 126 AD3d 1175, 1180-1181 [2015], lv denied 25 NY3d 1201 [2015];People v Story, 81 AD3d 1168,1169 [2011]). In sum, viewing the prosecutor's summation as a whole and in relation to theevidence adduced at trial and defense counsel's summation, and taking into account CountyCourt's instructions to the jury before and after closing statements that remarks therein did notconstitute evidence, we find no basis to order a new trial (see People v White, 79 AD3d 1460, 1464-1465 [2010], lvdenied 17 NY3d 803 [2011]; People v Alexander, 255 AD2d 708, 710 [1998], lvdenied 93 NY2d 897 [1999]; People v Patterson, 83 AD2d 691, 692 [1981]).
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.