People v. York

209 A.D.3d 877

175 N.Y.S.3d 482 (Mem)

The PEOPLE, etc., respondent,

v.Edwin YORK, appellant.

2019–13171

Ind. No. 1429/18

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

Argued—September 23, 2022

October 19, 2022

Patricia Pazner, New York, NY (William Kastin of counsel; Wander Gonzalez and Abraham Hoffman on the brief), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Benjamin Costanza of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH A. ZAYAS, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered October 25, 2019, convicting him of burglary in the second 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 v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 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 the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 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 claim of prosecutorial misconduct during summation is unpreserved for appellate review since the defendant failed to object to the allegedly improper comments or move for a mistrial on the grounds now argued on appeal (see CPL 470.05[2] ; People v. Hughes, 199 A.D.3d 937, 938, 154 N.Y.S.3d 453 ; People v. Gonzalez, 183 A.D.3d 663, 121 N.Y.S.3d 625 ). In any event, the comments at issue were responsive to the defense summation, were within the bounds of permissible rhetorical comment and constituted fair comment on the evidence, or were not, either individually or collectively, so egregious as to have deprived the defendant of a fair trial (see People v. Hughes, 199 A.D.3d at 938, 154 N.Y.S.3d 453 ; People v. Mahon, 188 A.D.3d 915, 135 N.Y.S.3d 406 ; People v. Abodalo, 178 A.D.3d 1067, 1068, 117 N.Y.S.3d 246 ; People v. Robinson, 160 A.D.3d 991, 992, 72 N.Y.S.3d 462 ; People v. Moore, 29 A.D.3d 825, 826, 814 N.Y.S.2d 277 ). Defense counsel's failure to object to these comments did not constitute ineffective assistance of counsel (see People v. Hughes, 199 A.D.3d at 938, 154 N.Y.S.3d 453 ; People v. Robinson, 160...