Opinion
2016–03800 (Ind. No. 15–00408)
11-21-2018
The PEOPLE, etc., respondent, v. Spencer D. SEYMOUR, appellant.
Paul N. Weber, Cornwall, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.
Paul N. Weber, Cornwall, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Nicolas DeRosa, J.), rendered March 24, 2016, convicting him of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence supporting his conviction of burglary in the second degree was legally insufficient is partially unpreserved for appellate review (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. Mendez, 34 A.D.3d 697, 698, 824 N.Y.S.2d 416 ; People v. Soto, 8 A.D.3d 683, 779 N.Y.S.2d 251 ). In any event, the defendant's contention is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of burglary in the second degree.
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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was 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 defendant's contention that he was deprived of a fair trial by certain comments made by the prosecutor during opening and closing statements is unpreserved for appellate review (see CPL 470.05[2] ; People v. Taylor, 65 A.D.3d 1169, 1170, 885 N.Y.S.2d 210 ). In any event, the prosecutor's remarks were mostly fair comment on the evidence, permissible rhetorical comment, or a fair response to the summation of defense counsel (see People v. Dorgan, 42 A.D.3d 505, 505, 838 N.Y.S.2d 787 ; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57 ; 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 ). To the extent that some of the comments were improper, they did not deprive the defendant of a fair trial (see People v. O'Keefe, 105 A.D.3d 1062, 1064, 963 N.Y.S.2d 720 ; People v. Jenkins, 93 A.D.3d 861, 940 N.Y.S.2d 874 ; People v. St. Juste, 83 A.D.3d 742, 919 N.Y.S.2d 888 ).
The defendant's contention that the Supreme Court's initial jury charge was coercive is unpreserved for appellate review (see CPL 470.05[2] ; People v. Edey, 180 A.D.2d 694, 580 N.Y.S.2d 58 ). In any event, under the circumstances presented here, the court's comments, which merely informed the jury about scheduling issues, did not constitute an attempt to coerce or compel the jury to reach a prompt verdict (see People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299 ; People v. Sharff, 38 N.Y.2d 751, 753, 381 N.Y.S.2d 48, 343 N.E.2d 765 ; People v. Morales, 36 A.D.3d 631, 632, 831 N.Y.S.2d 77 ; People v. James, 285 A.D.2d 561, 562, 727 N.Y.S.2d 900 ; People v. McFadden, 194 A.D.2d 566, 566, 598 N.Y.S.2d 567 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel. The record as a whole demonstrates that counsel provided the defendant with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
RIVERA, J.P., ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.