Opinion
1030 KA 15–00599
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Dron LUNDY, Defendant–Appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ). Contrary to defendant's contention, we conclude that he received effective assistance of counsel. Defendant failed to " ‘demonstrate the absence of strategic or other legitimate explanations’ for defense counsel's allegedly deficient conduct" ( People v. Bank, 129 A.D.3d 1445, 1447, 12 N.Y.S.3d 673 [4th Dept. 2015], affd 28 N.Y.3d 131, 42 N.Y.S.3d 651, 65 N.E.3d 680 [2016], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Defendant failed to preserve for our review his contention that the photo array from which a witness identified the codefendant, defendant's brother, was unduly suggestive, thereby tainting the witness's subsequent identification of defendant (see People v. Evans, 137 A.D.3d 1683, 1683, 28 N.Y.S.3d 199 [4th Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016]; People v. Carson, 126 A.D.3d 1537, 1538, 6 N.Y.S.3d 345 [4th Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ; People v. Bakerx, 114 A.D.3d 1244, 1247–1248, 980 N.Y.S.2d 210 [4th Dept. 2014], lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ). In any event, the contention is without merit. The record is devoid of evidence that any alleged suggestiveness in the photo array containing codefendant's photograph rendered the subsequent identification procedure in which the witness identified defendant unduly suggestive. Moreover, although codefendant was the only person depicted in a red shirt in the photo array, it was "not so distinctive as to be conspicuous, particularly since the other individuals [in the photo array] were dressed in varying, nondescript apparel" ( People v. Sullivan, 300 A.D.2d 689, 690, 752 N.Y.S.2d 733 [3d Dept. 2002], lv denied 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 [2003] ; see also People v. Mead, 41 A.D.3d 1306, 1307, 838 N.Y.S.2d 303 [4th Dept. 2007], lv denied 9 N.Y.3d 963, 848 N.Y.S.2d 31, 878 N.E.2d 615 [2007] ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "[R]esolution of issues of credibility and the weight to be accorded to the evidence are primarily questions to be determined by the jury" ( People v. Reed, 163 A.D.3d 1446, 1448–1449, 79 N.Y.S.3d 452 [4th Dept. 2018] ), and we perceive no basis for disturbing the jury's determinations in this case, particularly with respect to the eyewitness testimony about the shooting as well as the testimony regarding defendant's subsequent statements about the incident.
Defendant did not object to any of the alleged instances of prosecutorial misconduct during the prosecutor's opening statement or summation, and he therefore failed to preserve for our review his contention that he was thereby deprived of a fair trial (see People v. Lane, 106 A.D.3d 1478, 1480, 966 N.Y.S.2d 307 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013] ; People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012] ). In any event, that contention lacks merit. "[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the [witnesses'] character and credibility and justified the People's response" ( People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 [1993] ). Even assuming, arguendo, that any of the prosecutor's comments during the opening or closing statements exceeded the bounds of propriety, we conclude that they were "not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Jackson, 108 A.D.3d 1079, 1080, 968 N.Y.S.2d 789 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] [internal quotation marks omitted]; see People v. Miller, 104 A.D.3d 1223, 1223–1224, 960 N.Y.S.2d 584 [4th Dept. 2013], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396 [2013] ). Finally, the sentence imposed is not unduly harsh or severe.