| People v Chunn |
| 2020 NY Slip Op 01635 [181 AD3d 706] |
| March 11, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Chunn, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(John LaTella, J.), rendered June 9, 2015, convicting him of attempted murder in thesecond degree, attempted assault in the first degree, assault in the second degree, andcriminal possession of a weapon in the second degree (two counts), 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 [1983]), the evidence was legally sufficient to establish thedefendant's guilt of attempted murder in the second degree, attempted assault in the firstdegree, assault in the second degree, and criminal possession of a weapon in the seconddegree (two counts) beyond a reasonable doubt (see People v Lambert, 272AD2d 413, 413-414 [2000]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Anderson, 130 AD3d 1055, 1056 [2015]; People v Allen, 107 AD3d818, 818-819 [2013]; People v Lambert, 272 AD2d at 413-414).
The defendant's contention that the Supreme Court erred in admitting evidence of aprior meeting between the defendant and the complainant is without merit. Contrary tothe defendant's contention, this evidence was not Molineux evidence (seePeople v Molineux, 168 NY 264 [1901]) since it did not concern uncharged crimesor other bad acts (see People vBrewer, 28 NY3d 271, 276 [2016]; People v Myles, 172 AD3d 752, 753 [2019]).
The Supreme Court providently exercised its discretion in permitting the People tooffer into evidence recordings of telephone calls the defendant made while in pretrialdetention at Rikers Island Correctional Facility, as the recordings' probative value asevidence of consciousness of guilt outweighed their prejudicial effect (see People v Chrisostome, 167AD3d 644, 644 [2018]; People v Moore, 118 AD3d 916, 918 [2014]). The court'sruling also did not violate the defendant's Fourth Amendment right to be free fromunreasonable searches and seizures (see People v Diaz, 33 NY3d 92, 95 [2019]; People v Boyd, 175 AD3d630, 631 [2019]; People v Chrisostome, 167 AD3d at 644).
The defendant's contention that certain remarks made by the prosecutor wereimproper is, for the most part, unpreserved for appellate review (see CPL 470.05[2]; People v Beaupre, 170AD3d 1031, 1033 [2019]). In any event, most of the challenged summation remarkswere fair comments on the evidence and reasonable inferences to be drawn therefrom (see People v Anaka, 154 AD3d870, 872 [2017]). To the extent that the prosecutor's remarks constituted improperburden shifting, the Supreme Court sustained defense counsel's objection, and thecurative instructions provided by the court alleviated any prejudice that may haveresulted from the remarks (seePeople v Morrison, 59 AD3d 569, 569 [2009]; People v Ramsey, 48 AD3d709, 710 [2008]). To the extent that any of the remaining challenged remarks wereimproper, they were not so flagrant or pervasive as to have deprived the defendant of afair trial (see People vColeman, 148 AD3d 717, 718 [2017]; People v Almonte, 23 AD3d 392, 394 [2005]).Furthermore, defense counsel's failure to object to most of those remarks did notconstitute ineffective assistance of counsel (see People v Johnson, 171 AD3d 1089, 1090-1091[2019]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Chambers, Miller and Connolly, JJ., concur.