Opinion
2019-04950 Ind. 8674/17
06-23-2021
The People, etc., respondent, v. John Robinson, appellant.
Janet E. Sabel, New York, NY (Paul Wiener of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Nicole Leibow of counsel), for respondent.
Submitted - April 26, 2021
D66840 Q/afa
Janet E. Sabel, New York, NY (Paul Wiener of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Nicole Leibow of counsel), for respondent.
HECTOR D. LASALLE, P.J. ROBERT J. MILLER VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deborah Dowling, J.), rendered April 11, 2019, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by remarks made by the prosecutor during his opening statement and closing argument is unpreserved for appellate review (see CPL 470.05[2]; People v Romero, 7 N.Y.3d 911, 912). In any event, the defendant's contention is without merit. The defendant was not deprived of a fair trial by the challenged remarks made during the prosecutor's opening statement, as they "accurately described what the People intended to prove and prepared the jury to resolve the factual issues of the trial" (People v Etoria, 266 A.D.2d 559, 559; see People v Warden, 166 A.D.3d 817, 819). The defendant was not deprived of a fair trial by the challenged remarks made during the prosecutor's closing argument, as those remarks generally were fair comment on the evidence and reasonable inferences to be drawn therefrom (see People v Warden, 166 A.D.3d at 819; People v King, 144 A.D.3d 1176, 1177). To the extent that any of the challenged remarks were improper, they were not so egregious as to have deprived the defendant of a fair trial (see People v Jearel, 175 A.D.3d 565, 566). Moreover, any other error with respect to the prosecutor's summation was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that such error might have contributed to the defendant's conviction (see People v Crimmins, 36 N.Y.2d 230, 240-241; People v Jearel, 175 A.D.3d at 566).
The defendant's argument that certain questions posed by the prosecutor to two of the People's witnesses were improper is unpreserved for appellate review because defense counsel "either failed to object, or upon having his objection sustained, failed to seek further relief" (People v Wright, 62 A.D.3d 916, 917; see CPL 470.05[2]). In any event, to the extent the questions were improper, the prosecutor's misconduct was not "so flagrant or pervasive as to deny the defendant a fair trial" (People v Almonte, 23 A.D.3d 392, 394).
Contrary to the defendant's contention, defense counsel's failure to object to the majority of the challenged questions and remarks during the People's opening statement and closing argument did not constitute ineffective assistance of counsel (see People v Alphonso, 144 A.D.3d 1168, 1169). "[T]here can be no deprivation of effective assistance of counsel arising from the failure to make a motion or argument that had little or no chance of success" (People v King, 144 A.D.3d at 1177). Here, the record shows that defense counsel provided meaningful representation to the defendant.
To the extent the defendant claims that the Supreme Court, by the sentence it imposed, penalized him for refusing to accept a plea offer and exercising his right to a trial, this contention is unpreserved for appellate review as he failed to assert it at the sentencing hearing (see People v Katzman, 161 A.D.3d 770, 772; People v Perdomo, 154 A.D.3d 886, 887). In any event, the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v Katzman, 161 A.D.3d at 772; People v Perdomo, 154 A.D.3d at 887).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
LASALLE, P.J., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.