Opinion
2014-01-8
The PEOPLE, etc., respondent, v. Byron BELLE, also known as Byron Bells, appellant.
Lynn W.L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered May 11, 2010, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the prosecutor improperly cross-examined a defense witness with respect to that witness's failure to come forward at an earlier date is without merit. The prosecutor established a proper foundation pursuant toPeople v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771 before questioning that witness ( see People v. Bryan, 55 A.D.3d 921, 866 N.Y.S.2d 732; People v. Reid, 43 A.D.3d 1087, 841 N.Y.S.2d 457). The defendant's contention that the Supreme Court should have directed the prosecutor to cease questioning that witness with respect to that testimony once that witness explained why he did not come forward sooner is without merit. The defendant's further contention regarding that witness's testimony is unpreserved for appellate review ( seeCPL 470.05[2]; cf. People v. Stewart, 172 A.D.2d 862, 569 N.Y.S.2d 460), and we decline to review it in the exercise of our interest of justice jurisdiction.
The defendant's contention that the prosecutor made improper comments on summation is unpreserved for appellate review, since defense counsel did not object to the comments the defendant now challenges on appeal ( see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194).
Defense counsel's failure to object to the challenged summation comments did not deprive the defendant of the effective assistance of counsel ( see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Brooks, 89 A.D.3d 746, 747, 931 N.Y.S.2d 894; People v. Bajana, 82 A.D.3d at 1112, 919 N.Y.S.2d 194).
To the extent the defendant challenges the Supreme Court's instruction with respect to the justification defense, he did not request a different or supplemental charge, and did not object to the court's charge as given. Thus, his challenge is unpreserved for appellate review ( see People v. Henry, 306 A.D.2d 539, 539–540, 761 N.Y.S.2d 853), and we decline to review it in the exercise of our interest of justice jurisdiction. SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.