| People v Rogers |
| 2018 NY Slip Op 03550 [161 AD3d 1013] |
| May 16, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Rogers, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RobertCharles Kohm, J.), rendered June 9, 2015, convicting him of burglary in the second degree,possession of burglar's tools, petit larceny, and criminal possession of stolen property in the fifthdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At trial, the People's main eyewitness, a retired police officer, testified that, while plantingflowers in front of his home, he saw the defendant, who he had never seen before, enter a houseacross the street. After the defendant entered the house, the retired police officer heard loudbanging noises emanating from inside the house, saw the defendant exit the house carrying alaundry bag, was unable to obtain a plausible answer from the defendant as to the reason for hispresence there, and immobilized the defendant until police officers arrived shortly thereafter.When the police officers arrived, they found that the defendant had a watch, rings, and ascrewdriver on his person, and the laundry bag he was carrying contained a power drill and awater bottle filled with loose currency. The residents of the second floor apartment inside thehouse testified that the apartment had been ransacked, and its front door had been kicked in.Moreover, the residents of that apartment testified that the items found on the defendant, a manthey did not know, belonged to them and had been secured inside their apartment earlier thatday.
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 of burglary in the second degree, possession of burglar's tools, petit larceny, andcriminal possession of stolen property in the fifth degree beyond a reasonable doubt (see People v Borges, 90 AD3d1067, 1067-1068 [2011]; People vDiaz, 53 AD3d 504, 505 [2008]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contentions that, during her summation, the prosecutor vouched for thecredibility of witnesses, misrepresented the facts, shifted the burden of proof, denigrated the[*2]defense, and inflamed the jury, are unpreserved for appellatereview. The defendant either failed to object to the comments, failed to request further curativeinstructions after his objection was granted, or failed to timely move for a mistrial on the specificgrounds he now asserts on appeal (see CPL 470.05 [2]; People v Balls, 69 NY2d641, 642 [1986]; People v Salnave,41 AD3d 872, 874 [2007]; People vWright, 5 AD3d 873, 875 [2004]). In any event, the challenged remarks were either faircomment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]), fair response toarguments and theories presented in the defense summation (see People v Galloway, 54NY2d 396 [1981]; People v Moore,29 AD3d 825, 825-826 [2006]), or harmless (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]).
The defendant further contends that he was deprived of a fair trial when the prosecutor askedhim on cross-examination whether various parts of the testimony of the People's witnesses wereaccurate. The contention is unpreserved for appellate review because no objection was made tosuch questioning of the defendant at the trial (see People v Lawrence, 4 AD3d 436, 437 [2004]). In any event, theprosecutor's cross-examination questions were not improper, but "both relevant and material tothe credibility, veracity and honesty" of the defendant (People v Coleman, 56 NY2d 269,273 [1982]).
The defendant's claim that he received ineffective assistance of counsel, which is basedsolely upon his counsel's failure to preserve his current contentions regarding the prosecutor'sconduct during cross-examination and summation, is also without merit (see e.g. People v High, 119 AD3d959, 960 [2014]).
The defendant's contention that his adjudication as a persistent felony offender wasunconstitutional pursuant to Apprendi v New Jersey (530 US 466 [2000]) and its progenyis without merit (see People v Giles,24 NY3d 1066, 1068 [2014]; People v Bell, 15 NY3d 935, 936 [2010]; People v Dingle, 147 AD3d 1080,1081 [2017]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Dillon, J.P., Leventhal, Connolly and Brathwaite Nelson, JJ., concur.