Opinion
2014-04-23
The PEOPLE, etc., respondent, v. Christopher BOLEY, appellant.
Michael P. Braunsberg, Staten Island, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross and Amanda Muros–Bishoff of counsel), for respondent.
Michael P. Braunsberg, Staten Island, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross and Amanda Muros–Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered May 21, 2010, convicting him of assault in the first degree, 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 committed prosecutorial misconduct because he failed to conduct a thorough investigation rests on matter dehors the record and, thus, is not properly before this Court ( see generally People v. McLean, 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520;People v. Fully, 109 A.D.3d 936, 936, 971 N.Y.S.2d 459;People v. Steven B., 81 A.D.3d 843, 843, 916 N.Y.S.2d 832).
The Supreme Court properly precluded the defendant's father from testifying that a nontestifying witness to the attack told the father that he had hit the complainant with a lock and chain. For a statement to be admissible under the exception to the hearsay rule for declarations against penal interest, a four-part test must be satisfied: (1) the declarant must be unavailable to testify at the defendant's trial, (2) the declarant must have competent knowledge of the facts, (3) the declarant must have known at the time the statement was made that it was against his or her penal interest, and (4), most important, there must be independent supporting proof indicating that the statement is trustworthy and reliable ( see People v. Ennis, 11 N.Y.3d 403, 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915,cert. denied556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301;People v. Brensic, 70 N.Y.2d 9, 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226;People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612;People v. Singh, 47 A.D.3d 733, 734, 849 N.Y.S.2d 606,cert. denied 555 U.S. 1011, 129 S.Ct. 570, 172 L.Ed.2d 429). Here the defendant failed to satisfy the test because he failed to establish that the declarant was unavailable to testify ( see People v. Harvey, 270 A.D.2d 959, 960, 706 N.Y.S.2d 562).
The defendant's contention that he was deprived of a fair trial by the prosecutor's comments in summation is unpreserved for appellate review since he failed to raise his specific objections to those comments at trial ( seeCPL 470.05[2]; People v. Bellman, 112 A.D.3d 732, 976 N.Y.S.2d 401;People v. Beauliere, 36 A.D.3d 623, 623, 831 N.Y.S.2d 88;People v. Materon, 276 A.D.2d 718, 718–719, 716 N.Y.S.2d 313). In any event, the majority of the challenged remarks constituted fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Roscher, 114 A.D.3d 812, 980 N.Y.S.2d 146;People v. Bartolomeo, 126 A.D.2d 375, 390, 513 N.Y.S.2d 981). To the extent that a remark made by the prosecutor was improper, it did not deprive the defendant of a fair trial ( see People v. Roscher, 114 A.D.3d at 813, 980 N.Y.S.2d 146).
The defendant's contentions that the Supreme Court's justification charge was confusing and otherwise improper are unpreserved for appellate review, as he failed to object to the charge ( see People v. Gueye, 81 A.D.3d 974, 917 N.Y.S.2d 883;People v. Barreto, 70 A.D.3d 574, 575, 895 N.Y.S.2d 92;People v. Ware, 36 A.D.3d 838, 839, 827 N.Y.S.2d 704,mod. sub nom. People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459). The defendant's contention that the verdict was repugnant is also unpreserved for appellate review, as he failed to raise this issue before the discharge of the jury ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;People v. Ariza, 77 A.D.3d 844, 845, 909 N.Y.S.2d 148;People v. Moses, 36 A.D.3d 720, 826 N.Y.S.2d 746). Although the defendant raised these claims in his motion to set aside the verdict, this was insufficient to preserve the claims for review on the directappeal from the judgment of conviction ( see People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233;People v. Sadler, 49 A.D.3d 670, 670, 853 N.Y.S.2d 374;People v. Donnigan, 31 A.D.3d 576, 576, 818 N.Y.S.2d 558;People v. LaGuerre, 29 A.D.3d 820, 821, 815 N.Y.S.2d 211). In any event, the defendant's contentions are without merit.
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 beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 remaining contentions are without merit. SKELOS, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.