Opinion
2014-01407 Ind. No. 2034/11.
01-27-2016
The PEOPLE, etc., respondent, v. Edward TAVAREZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Elizabeth Budnitz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Elizabeth Budnitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered December 18, 2013, convicting him of burglary in the second degree, criminal mischief in the fourth degree, and possession of burglar's tools, 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 due to improper remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.052; People v. Scotti, 220 A.D.2d 543, 632 N.Y.S.2d 209). In any event, most of the prosecutor's remarks, viewed in context, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Valdes, 291 A.D.2d 513, 514, 738 N.Y.S.2d 223; People v. Holguin, 284 A.D.2d 343, 725 N.Y.S.2d 572). Contrary to the defendant's contention, the challenged remarks did not improperly vouch for the strength of the People's case, or denigrate the defense or the defendant's exercise of his right to a jury trial. To the extent that any of the prosecutor's remarks were improper, they were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Thompson, 125 A.D.3d 899, 900, 1 N.Y.S.3d 833; People v. Ward, 106 A.D.3d 842, 843, 964 N.Y.S.2d 642; People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540; People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).
The defendant's contention that the evidence was legally insufficient to support his conviction of possession of burglar's tools is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). 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 that offense (see People v. Borrero, 26 N.Y.2d 430, 311 N.Y.S.2d 475, 259 N.E.2d 902).