People v. Lindsey

172 A.D.3d 1233

98 N.Y.S.3d 882 (Mem)

The PEOPLE, etc., Respondent,

v.Lee LINDSEY, Appellant.

2014–11807

Ind.No. 2356/13

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

Argued—February 15, 2019

May 22, 2019

Paul Skip Laisure, New York, N.Y. (Jenin Younes and Ava Page of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle M. O'Boyle of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant contends that he was deprived of his constitutional rights to counsel and to confront the witnesses against him at the Huntley hearing (see People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d 31, 371 N.E.2d 794 ) when the Supreme Court precluded him from eliciting evidence regarding whether he was questioned by police in violation of the indelible right to counsel guaranteed by the New York State Constitution. This contention is unpreserved for appellate review, as the defendant did not assert a constitutional right to introduce the excluded evidence during the Huntley hearing (see CPL 470.05[2] ; People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ; People v. Cutting, 150 A.D.3d 873, 875, 56 N.Y.S.3d 315 ; People v. Taylor, 150 A.D.3d 768, 769, 53 N.Y.S.3d 702 ). In any event, the court providently exercised its discretion in precluding this evidence since it was speculative and unsupported by any factual proffer (see People v. Hicks, 88 A.D.3d 817, 818, 930 N.Y.S.2d 658 ; People v. Francisco, 44 A.D.3d 870, 843 N.Y.S.2d 439 ; People v. Daniel, 35 A.D.3d 877, 878–879, 828 N.Y.S.2d 125 ).

The defendant's contention that he was deprived of a fair trial by improper remarks made by the prosecutor during her opening statement and her summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Warden, 166 A.D.3d 817, 818, 87 N.Y.S.3d 307 ; People v. Wisdom, 164 A.D.3d 928, 930, 82 N.Y.S.3d 97 ; People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123 ; People v. Herrera, 161 A.D.3d 1006, 77 N.Y.S.3d 510 ; People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589 ). In any event, this contention is without merit. The defendant was not deprived of a fair trial by the challenged remarks made during the prosecutor's opening statement, as the majority of those remarks described what the People intended to prove and properly prepared the jury to resolve the factual issues at the trial (see People v. Warden, 166 A.D.3d at 819, 87 N.Y.S.3d 307 ; People v. Bonds, 118 A.D.3d 717, 719, 987 N.Y.S.2d 428 ). Similarly, the defendant was not deprived of a fair trial by the challenged remarks made during the prosecutor's summation since the majority of the comments alleged to be prejudicial were fair comment on the evidence and reasonable inferences to be drawn therefrom, or fair response to defense counsel's summation (see People v. Young, 168 A.D.3d 771, 91 N.Y.S.3d 253 ; People v. Zaimi, 167 A.D.3d 954, 955, 90 N.Y.S.3d 104 ; People v. Giddens, 163 A.D.3d 990, 991, 81 N.Y.S.3d 515 ). To the extent that the prosecutor exceeded the bounds of permissible rhetorical comment, the remarks were not so egregious as to have deprived the defendant of a fair trial, and any other error in this regard was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.