| People v Megnath |
| 2018 NY Slip Op 05868 [164 AD3d 834] |
| August 22, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Hemant Megnath, Appellant. |
Mischel & Horn, P.C., New York, NY (Richard E. Mischel of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert J.Hanophy, J.), rendered May 11, 2010, convicting him of murder in the first degree, intimidating avictim or witness in the first degree, bribing a witness, and coercion in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the convictions werenot supported by legally sufficient evidence (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt of murder in the first degree,intimidating a victim or witness in the first degree, bribing a witness, and coercion in the firstdegree beyond a reasonable doubt. 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 [2004];People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to those crimes were not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The prosecutor's interrogation of the defendant's witnesses on cross-examination wasproperly limited to the witnesses' testimony on direct examination (see People vSchwartzman, 24 NY2d 241, 244 [1969]; People v Kinard, 215 AD2d 591 [1995];People v Hendricks, 214 AD2d 584 [1995]; People v Thomas, 141 AD2d 782[1988]) and was relevant to the witnesses' credibility, veracity, and honesty (see People vWalker, 83 NY2d 455, 459 [1994]; People v Connolly, 259 AD2d 1039 [1999]).
We agree with the Supreme Court's determination to preclude a witness from testifying thatthe defendant generally put out his garbage in front of his home in Brooklyn at 8:30 a.m. as analibi to the murder, which occurred at about 8:00 a.m. in Queens. This was not admissible ashabit evidence because it was insufficient to establish such a repetitive pattern as to be predictiveof the defendant's conduct (see People vSimmons, 39 AD3d 235, 236 [2007]; Jerome Prince, Richardson on Evidence§ 4-601 at 197-198 [Farrell 11th ed 1995]).
[*2] The defendant failed to preserve for appellate review hiscontention that certain comments made by the prosecutor during summation deprived him of afair trial (see CPL 470.05 [2]). In any event, the challenged remarks, for the most part,constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v Fuhrtz, 115 AD3d760 [2014]; People v Birot, 99AD3d 933 [2012]; People vGuevara-Carrero, 92 AD3d 693, 695 [2012]; People v McHarris, 297 AD2d 824,825 [2002]), or were fair response to defense counsel's comments during summation (seePeople v Adamo, 309 AD2d 808, 810 [2003]; People v Clark, 222 AD2d 446, 447[1995]; People v Vaughn, 209 AD2d 459, 459-460 [1994]). Any improper statementswere not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Almonte, 23 AD3d392, 394 [2005]; People v Svanberg, 293 AD2d 555 [2002]). Rivera, J.P.,Hinds-Radix, LaSalle and Brathwaite Nelson, JJ., concur.