Opinion
2013-01-23
The PEOPLE, etc., respondent, v. Lonnie FLOWERS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 14, 2010, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, under the circumstances presented, the Supreme Court providently exercised its discretion and did not deprive him of due process and the right to present a defense by denying his request to recall a certain witness for further cross-examination ( see People v. Smith, 90 A.D.3d 561, 561, 936 N.Y.S.2d 135;see also People v. Macklin, 247 A.D.2d 408, 408, 667 N.Y.S.2d 931;People v. Shapiro, 227 A.D.2d 506, 507, 643 N.Y.S.2d 143;People v. Bunting, 134 A.D.2d 646, 648, 521 N.Y.S.2d 330;People v. Mercado, 134 A.D.2d 292, 292, 520 N.Y.S.2d 617;cf. People v. Rostick, 244 A.D.2d 768, 769, 666 N.Y.S.2d 235;People v. Desire, 113 A.D.2d 952, 952, 493 N.Y.S.2d 849).
The defendant's contention that the Supreme Court deprived him of due process and a fair trial by the admission of certain testimony related to his girlfriend is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Price, 120 A.D.2d 690, 690, 502 N.Y.S.2d 278). In any event, the court providently exercised its discretion in denying the defendant's belated motion for a mistrial based on the admission of such testimony ( see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794;People v. Dollar, 79 A.D.3d 1062, 1062, 914 N.Y.S.2d 900).
The defendant's contention that certain allegedly improper comments made by the prosecutor during his summation deprived the defendant of due process and a fair trial is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Osorio, 49 A.D.3d 562, 563–564, 855 N.Y.S.2d 163). In any event, for the most part, the challenged remarks were fair comment on the evidence, or remained within the broad bounds of rhetorical comment permissible in summations, and were responsive to the summation of defense counsel ( see People v. Dorgan, 42 A.D.3d 505, 505, 838 N.Y.S.2d 787;People v. Barnes, 33 A.D.3d 811, 812, 826 N.Y.S.2d 283;People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;People v. Sinclair, 231 A.D.2d 926, 926, 647 N.Y.S.2d 896;People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714;People v. Vaughn, 209 A.D.2d 459, 460, 619 N.Y.S.2d 573;People v. Holder, 203 A.D.2d 382, 383, 610 N.Y.S.2d 541;People v. Thomas, 186 A.D.2d 602, 602–603, 588 N.Y.S.2d 395;People v. Anderson, 154 A.D.2d 607, 607, 546 N.Y.S.2d 435). To the extent that some of the comments were improper, they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244;People v. Brown, 272 A.D.2d 338, 339, 708 N.Y.S.2d 302) and did not deprive the defendant of due process and a fair trial ( see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95;People v. Svanberg, 293 A.D.2d 555, 555, 739 N.Y.S.2d 837;People v. Holder, 203 A.D.2d at 383, 610 N.Y.S.2d 541).
Contrary to the defendant's contention, the Supreme Court's imposition of consecutive sentences with respect to the count of criminal possession of a weapon in the second degree under Penal Law § 265.03(3) and the counts of murder and attempted murder in the second degree was not illegal ( see People v. Harris, 96 A.D.3d 502, 503, 947 N.Y.S.2d 61,lv. granted 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111;see generally People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463;cf. People v. Wright, 19 N.Y.3d 359, 948 N.Y.S.2d 228, 971 N.E.2d 358; People v. Hamilton, 4 N.Y.3d 654, 797 N.Y.S.2d 408, 830 N.E.2d 306;People v. Hernandez, 46 A.D.3d 574, 576–577, 846 N.Y.S.2d 371).