| People v Carmichael |
| 2019 NY Slip Op 01612 [170 AD3d 742] |
| March 6, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darkel Carmichael, Appellant. |
Paul Skip Laisure, New York, NY (Anders Nelson and Kendra L. Hutchinson of counsel),for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John LaTella, J.), rendered December 15, 2016, convicting him of criminal contempt in the first degree(two counts), criminal contempt in the second degree (two counts), attempted assault in the thirddegree, endangering the welfare of a child (four counts), aggravated harassment in the seconddegree, and stalking in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
During the prosecution's opening statement, the prosecutor referenced certain recordedtelephone calls she intended to introduce, but during the trial, the prosecutor was unable to lay afoundation for the admission of those telephone calls into evidence. The defendant's contentionthat these comments deprived him of a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, "absent bad faith or undue prejudice," unfulfilled promises in aprosecutor's opening statement will not entitle a defendant to a new trial (People v DeTore, 34 NY2d 199, 207 [1974]; seePeople v Bramble, 81 AD3d 968, 968-969 [2011]; People v McEaddy, 41 AD3d 877, 880 [2007]). Here, there is noreason to believe that the prosecutor acted in bad faith and, under the circumstances of this case,the defendant was not unduly prejudiced by the unfulfilled representations (see People v McKnight, 72 AD3d846, 846-847 [2010], affd 16 NY3d 43 [2010]).
The defendant's contention that he was deprived of a fair trial because of certain remarks theprosecutor made during summation is, for the most part, unpreserved for appellate review(see CPL 470.05 [2]). In any event, most of the challenged comments constituted faircomment on the evidence (see People v Ashwal 39 NY2d 105, 109-110 [1976]; People v Herb, 110 AD3d 829,831 [2013]), were responsive to arguments and theories presented in defense counsel'ssummation (see People v Gross 88AD3d 905, 906 [2011]), or were permissible rhetorical comment (see People vAshwal, 39 NY2d at 109-110; People v Herb, 110 AD3d at 831). To the extent thatthe prosecutor exceeded the bounds of permissible rhetorical comment, the defendant was notdeprived of a fair trial (see People v Galloway, 54 NY2d 396, 401 [1981]). Moreover, thecumulative effect of the alleged errors was harmless (see People v Crimmins, 36 NY2d230, 241-242 [1975]).
The defendant's contention regarding the duration of certain final orders of protection enteredat the time of sentencing is unpreserved for appellate review, since he did not raise thiscontention at sentencing or move to amend the final orders of protection (see People v Elgut, 164 AD3d1360 [2018]; People vO'Connor, 136 AD3d 945 [2016]; People v Kumar, 127 AD3d 882, 883 [2015]). We decline to reachthis contention in the exercise of our interest of justice jurisdiction, as the betterpractice—and best use of judicial resources—is for a defendant seeking adjustmentof an order of protection to request relief from the issuing court in the first instance, resorting tothe appellate courts only if necessary (see People v Nieves, 2 NY3d 310, 317 [2004]).
The defendant's remaining contention is without merit. Mastro, J.P., Roman, Cohen andConnolly, JJ., concur.