Opinion
2015-2938 K CR
12-07-2018
The PEOPLE of the State of New York, Respondent, v. Jerry CRUMELL, Appellant.
Appellate Advocates (Dina Zloczower of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Appellate Advocates (Dina Zloczower of counsel), for appellant.
Kings County District Attorney (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Curtis J. Farber, J.), rendered December 3, 2015. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se, common-law driving while intoxicated, and criminal possession of a weapon in the fourth degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
In November 2012, defendant was arraigned on an accusatory instrument charging him with driving while intoxicated per se ( Vehicle and Traffic Law § 1192 [2 ] ), common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ), driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ), and criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [1 ] ). The factual allegations of the accusatory instrument state, among other things, that a police officer approached defendant after having observed defendant standing in the middle of the street next to a vehicle which appeared to have been damaged in an accident. Defendant informed the officer that he had been driving the vehicle and admitted that he had been drinking. The People, on several occasions, offered defendant a plea, which included, among other things, a sentence of a conditional discharge. Defendant refused the offers. Following a jury trial, defendant was convicted of driving while intoxicated per se, common-law driving while intoxicated and criminal possession of a weapon in the fourth degree, and was sentenced to, among other things, concurrent three-year terms of probation.
On appeal, defendant contends that the judgment of conviction should be reversed and a new trial ordered because comments the prosecutor made during her summation deprived him a fair trial and because he received the ineffective assistance of counsel. Defendant further argues that the imposition of concurrent three-year terms of probation was excessive.
With respect to the comments by the prosecutor to which defense counsel made either an unspecific "objection," objected on a different ground from that which is argued on appeal, or failed to object, defendant's arguments are unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Montalvo , 34 AD3d 600, 601 [2006] ). In any event, defendant's contention that the prosecutor's comments during summation deprived him of a fair trial has no merit. The prosecutor's comments were fair responses to comments made during defense counsel's summation (see People v. Megnath , 164 AD3d 834, 836 [2018] ; People v. Hugginis , 163 AD3d 719 [2018] ; People v. Lewis , 150 AD3d 1264, 1265 [2017] ), and were fair comments on the evidence and the reasonable inferences which the jury could draw therefrom (see People v. Megnath , 164 AD3d at 835 ; People v. Kaval , 154 AD3d 875, 876 [2017] ; People v. Rudenko , 151 AD3d 1084, 1085 [2017] ; People v. Fuhrtz , 115 AD3d 760 [2014] ; People v. Hawley , 112 AD3d 968, 969 [2013] ). Moreover, the comments were not prejudicial, since the Criminal Court had instructed the jury that summations are not evidence and that it could accept or reject any argument made during summations (see People v. Brown , 139 AD3d 964, 966 [2016] ), and the jury is presumed to have followed the court's instructions (see People v. Stone , 29 NY3d 166, 171 [2017] ; People v. Baker , 14 NY3d 266, 274 [2010] ). The record does not support defendant's argument that the prosecutor was "us[ing] her position as an arm of the State to add weight to her arguments"; rather, the comments fell well within the bounds of rhetorical comments (see People v. Hugginis , 163 AD3d 719 ; People v. Mieles , 161 AD3d 1196, 1197 [2018] ). The Criminal Court also clearly instructed the jury regarding the weight to be given the Intoxilyzer test results, and the jury is presumed to have followed the court's instructions (see People v. Stone , 29 NY23d at 171; People v. Baker , 14 NY3d at 274 ). To the extent that any of the prosecutor's comments were improper, they were not, either individually or collectively, so egregious as to deprive defendant of a fair trial (see People v. Simpson , 151 AD3d 762 [2017] ).
In view of the foregoing, defendant's contention that he received the ineffective assistance of counsel due to the failure of his trial attorney to object to some of the comments made by the prosecutor lacks merit. Defendant has not shown that his counsel's conduct was so egregious and prejudicial as to deprive him of a fair trial (see People v. Ambers , 26 NY3d 313, 317 [2015] ). We find that defendant received the effective assistance of counsel under the federal and state standards (see Strickland v. Washington , 466 US 668 [1984] ; People v. Benevento , 91 NY2d 708, 713-714 [1988] ).
Furthermore, we do not find defendant's sentence of concurrent three-year terms of probation to be excessive (see People v. Suitte , 90 AD2d 80 [1982] ). We note that, pursuant to CPL 410.20 (1), "[t]he court may modify or enlarge the conditions of a sentence of probation or of conditional discharge at any time prior to the expiration or termination of the period of the sentence." Since defendant's probation has not yet expired, he may seek relief in the Criminal Court (see People v. LaCoude , 193 Misc 2d 578, 579 [App Term, 2d Dept, 9th & 10th Jud Dists 2002] ). Defendant's argument that the Criminal Court punished him for exercising his right to have a trial by imposing probation, rather than a conditional discharge, is unpreserved for appellate review (see People v. Hurley , 75 NY2d 887, 888 [1990] ; People v. Major , 143 AD3d 1155, 1160 [2016] ; People v. Haskins , 121 AD3d 1181, 1185 [2014] ). In any event, defendant's argument lacks merit, as the record contains no support for defendant's contention that the sentence was retaliatory rather than based upon the seriousness of the offenses and other relevant sentencing factors. The fact that a sentence imposed after trial is greater than the sentence offered during plea negotiations does not, without more, establish retaliation or vindictiveness (see People v. Pena , 50 NY2d 400, 411-412 [1980] ; People v. Planty , 155 AD3d 1130, 1135 [2017] ; People v. Major , 143 AD3d at 1160 ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.