| People v Lundy |
| 2018 NY Slip Op 06665 [165 AD3d 1626] |
| October 5, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dron Lundy, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedNovember 21, 2014. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and two counts of criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Contrary todefendant's contention, we conclude that he received effective assistance of counsel. Defendantfailed to " 'demonstrate the absence of strategic or other legitimate explanations' fordefense counsel's allegedly deficient conduct" (People v Bank, 129 AD3d 1445, 1447 [4th Dept 2015], affd28 NY3d 131 [2016], quoting People v Rivera, 71 NY2d 705, 709 [1988]; seePeople v Benevento, 91 NY2d 708, 712 [1998]).
Defendant failed to preserve for our review his contention that the photo array from which awitness identified the codefendant, defendant's brother, was unduly suggestive, thereby taintingthe witness's subsequent identification of defendant (see People v Evans, 137 AD3d 1683, 1683 [4th Dept 2016], lvdenied 27 NY3d 1131 [2016]; People v Carson, 126 AD3d 1537, 1538 [4th Dept 2015], lvdenied 26 NY3d 927 [2015]; Peoplev Bakerx, 114 AD3d 1244, 1247-1248 [4th Dept 2014], lv denied 22 NY3d1196 [2014]). In any event, the contention is without merit. The record is devoid of evidence thatany alleged suggestiveness in the photo array containing codefendant's photograph rendered thesubsequent identification procedure in which the witness identified defendant unduly suggestive.Moreover, although codefendant was the only person depicted in a red shirt in the photo array, itwas "not so distinctive as to be conspicuous, particularly since the other individuals [in the photoarray] were dressed in varying, nondescript apparel" (People v Sullivan, 300 AD2d 689,690 [3d Dept 2002], lv denied 100 NY2d 587 [2003]; see also People v Mead, 41 AD3d 1306, 1307 [4th Dept 2007],lv denied 9 NY3d 963 [2007]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolutionof issues of credibility and the weight to be accorded to the evidence are primarily questions to bedetermined by the jury" (People vReed, 163 AD3d 1446, 1448-1449 [4th Dept 2018]), and we perceive no basis fordisturbing the jury's determinations in this case, particularly with respect to the eyewitnesstestimony about the shooting as well as the testimony regarding defendant's subsequentstatements about the incident.
Defendant did not object to any of the alleged instances of prosecutorial misconduct duringthe prosecutor's opening statement or summation, and he therefore failed to preserve for ourreview his contention that he was thereby deprived of a fair trial (see People v Lane, 106 AD3d1478, 1480 [4th Dept 2013], lv denied 21 NY3d 1043 [2013]; People v Rumph, 93 AD3d 1346,1347 [4th Dept 2012], lv denied 19 NY3d 967 [2012]). In any event, that contentionlacks merit. "[T]he prosecutor's closing statement must be evaluated in light of the defensesummation, which put into issue the [witnesses'] character and credibility and justified thePeople's response" (People v Halm, 81 NY2d 819, 821 [1993]). Even assuming,arguendo, that any of the prosecutor's comments during the opening or closing statementsexceeded the bounds of propriety, we conclude that they were "not so pervasive or egregious asto deprive defendant of a fair trial" (People v Jackson, 108 AD3d 1079, 1080 [4th Dept 2013], lvdenied 22 NY3d 997 [2013] [internal quotation marks omitted]; see People v Miller, 104 AD3d1223, 1223-1224 [4th Dept 2013], lv denied 21 NY3d 1017 [2013]). Finally, thesentence imposed is not unduly harsh or severe. Present—Centra, J.P., Carni, NeMoyer,Troutman and Winslow, JJ.