Opinion
2010–04792 Ind. No. 917/07
08-22-2018
The PEOPLE, etc., respondent, v. Hemant MEGNATH, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), for appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert J. Hanophy, J.), rendered May 11, 2010, convicting him of murder in the first degree, intimidating a victim or witness in the first degree, bribing a witness, and coercion in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the convictions were not supported by legally sufficient evidence (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, 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 of murder in the first degree, intimidating a victim or witness in the first degree, bribing a witness, and coercion in the first degree 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, 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 as to those crimes were 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 prosecutor's interrogation of the defendant's witnesses on cross-examination was properly limited to the witnesses' testimony on direct examination (see People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642 ; People v. Kinard, 215 A.D.2d 591, 626 N.Y.S.2d 858 ; People v. Hendricks, 214 A.D.2d 584, 625 N.Y.S.2d 922 ; People v. Thomas, 141 A.D.2d 782, 529 N.Y.S.2d 601 ) and was relevant to the witnesses' credibility, veracity, and honesty (see People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 ; People v. Connolly, 259 A.D.2d 1039, 688 N.Y.S.2d 352 ).
We agree with the Supreme Court's determination to preclude a witness from testifying that the defendant generally put out his garbage in front of his home in Brooklyn at 8:30 a.m. as an alibi to the murder, which occurred at about 8:00 a.m. in Queens. This was not admissible as habit evidence because it was insufficient to establish such a repetitive pattern as to be predictive of the defendant's conduct (see People v. Simmons, 39 A.D.3d 235, 236, 833 N.Y.S.2d 437 ; Jerome Prince, Richardson on Evidence § 4–601 at 197–198 [Farrell 11th ed.] ).
The defendant failed to preserve for appellate review his contention that certain comments made by the prosecutor during summation deprived him of a fair trial (see CPL 470.05[2] ). In any event, the challenged remarks, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Guevara–Carrero, 92 A.D.3d 693, 695, 938 N.Y.S.2d 185 ; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57 ), or were fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 810, 765 N.Y.S.2d 651 ; People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714 ; People v. Vaughn, 209 A.D.2d 459, 459–460, 619 N.Y.S.2d 573 ). Any improper statements were not so flagrant or pervasive as to deprive the defendant of 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, 739 N.Y.S.2d 837 ).
RIVERA, J.P., HINDS–RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.