| People v Burns |
| 2020 NY Slip Op 02933 [183 AD3d 835] |
| May 20, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Deborah Burns, Appellant. |
Paul Skip Laisure, New York, NY (Anjali Biala of counsel), for appellant.
Melinda Katz, 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(Michael Aloise, J.), rendered June 15, 2017, convicting her of manslaughter in thesecond degree (three counts) and assault in the second degree (two counts), upon a juryverdict, and sentencing her to concurrent, indeterminate terms of imprisonment of 5 to 15years on each manslaughter conviction, to run consecutively to concurrent, determinateterms of imprisonment of 7 years on each assault conviction, to be followed by a periodof 3 years of post-release supervision on the assault convictions.
Ordered that the judgment is modified, on the law, by providing that all of thesentences imposed shall run concurrently with each other; as so modified, the judgmentis affirmed.
The defendant's contention that her convictions are not supported by legallysufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vPearsall, 171 AD3d 1096, 1096 [2019]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620,621 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt (seePeople v Kanios, 53 AD3d 555, 555 [2008]; People v Wolz, 300 AD2d606, 606 [2002]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633, 645-646 [2006]).
The defendant waived any objection to the admission into evidence of a familyphotograph of the deceased victims and the report generated from data extracted from the"black box" of her vehicle by consenting to their admission at trial (see People v Williams, 168AD3d 770, 770 [2019]; People v Katehis, 117 AD3d 1080, 1081 [2014]).
The defendant's contention that she received ineffective assistance of counsel iswithout merit as the record shows that defense counsel provided the defendant withmeaningful representation (seePeople v Orlando, 61 AD3d 1001, 1002 [2009]; see also People vKatehis, 117 AD3d at 1081).
The defendant's contention that the prosecutor committed misconduct by questioningthe witnesses about the background of the victims' family is unpreserved for appellatereview because the defendant did not object to these remarks or questions (see People v Davis, 132 AD3d891, 892 [2015]). In any event, the testimony complained of did not deprive thedefendant of a fair trial (seePeople v Cherry, 163 AD3d 706, 707 [2018]).
The defendant's contention that she was deprived of her right to a fair trial due toimproper remarks made by the prosecutor during his summation is unpreserved forappellate review, as the defense counsel did not object to some of the challenged remarksand made only general objections to the others (see CPL 470.05 [2]; People v Mais, 133 AD3d687, 688-689 [2015]). In any event, the majority of the prosecutor's comments wereeither fair comment on the evidence and the reasonable inferences to be drawn therefrom,or fair response to the arguments made by defense counsel in summation (see People v JeanCharles, 173AD3d 902, 902 [2019]; seealso People v Gurdon, 153 AD3d 1430, 1431 [2017]). Although the prosecutor'scomments about the effect the deceased victims' deaths had on their family wereimproper, as the comments were designed to evoke the jury's sympathy, any prejudicewas alleviated by the Supreme Court's instruction, during its final charge, that the jurymay not consider sympathy (seePeople v Esguerra, 178 AD3d 722, 725 [2019]; People v Melendez, 11 AD3d983, 983 [2004]), and did not deprive the defendant of a fair trial (see People vCherry, 163 AD3d at 707).
However, as the People concede, the Supreme Court should have imposedconcurrent sentences on the convictions of assault in the second degree and theconvictions of manslaughter in the second degree (see People v Laureano, 87NY2d 640, 645 [1996]). The offenses of manslaughter in the second degree and assaultin the second degree arose out of the same operative facts—the defendant's act ofrecklessly driving her car into the other vehicle. Accordingly, we modify the judgment tomake the sentences concurrent to each other (see Penal Law § 70.25[2]; People v Brahney, 29NY3d 10, 14 [2017]; People v Michel, 144 AD3d 948, 949 [2016]). Dillon, J.P.,Chambers, Cohen and Duffy, JJ., concur.