People v. Ambers

115 A.D.3d 671

981 N.Y.S.2d 554

2014 N.Y. Slip Op. 01457

The PEOPLE, etc., respondent,

v.Nugene AMBERS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 5, 2014.

Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Ushir Pandit of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered September 22, 2011, as amended December 14, 2011, convicting him of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During the first round of jury selection, the prosecutor improperly asked the prospective jurors, in evaluating the credibility of one of the complaining witnesses, in essence, to commit themselves to rejecting the doctrine of “falsus in uno,” which generally provides that a juror may accept or reject a witness's testimony in whole or in part ( see generally People v. Johnson, 225 A.D.2d 464, 639 N.Y.S.2d 802). However, the prosecutor's comments and questions on this topic did not prejudice the defendant ( see generally People v. Steward, 17 N.Y.3d 104, 113, 926 N.Y.S.2d 847, 950 N.E.2d 480;People v. Jean, 75 N.Y.2d 744, 745, 551 N.Y.S.2d 889, 551 N.E.2d 90;People v. Dashosh, 59 A.D.3d 731, 731, 873 N.Y.S.2d 730). Since the trial court repeatedly advised all of the prospective jurors that it would instruct them on the law, the prosecutor's comments and questions “could not have been interpreted by the [prospective jurors] as an instruction on the law” ( People v. Din, 62 A.D.3d 1023, 1024, 879 N.Y.S.2d 577;see People v. Cephas, 91 A.D.3d 668, 669, 935 N.Y.S.2d 655). Furthermore, contrary to the defendant's contention, certain remarks and questioning by the prosecutor concerning the same evidence during subsequent rounds of jury selection were not improper ( see People v. Evans, 242 A.D.2d 948, 949, 662 N.Y.S.2d 651;People v. Porter, 226 A.D.2d 275, 276–277, 641 N.Y.S.2d 283;see also People v. Rivera, 27 A.D.3d 491, 492, 810 N.Y.S.2d 333).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that various comments made by the prosecutor during her summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either did not object to the remarks at issue, made only a general objection, or failed to request further curative relief or make a timely motion for a mistrial on the specific grounds now asserted on appeal when the trial court sustained his objections or provided curative instructions ( see People v. Barton, 110 A.D.3d 1089, 973 N.Y.S.2d 760;People v. O'Keefe, 105 A.D.3d 1062, 1064, 963 N.Y.S.2d 720;People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194;People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540).

The defendant was not deprived of the...