Opinion
2015-06-17
The PEOPLE, etc., respondent, v. David DAVYDOV, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Monique D. Ferrell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Daniel Bresnahan, and Deborah Wassel of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Monique D. Ferrell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Daniel Bresnahan, and Deborah Wassel of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered July 19, 2013, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contention, any discrepancies in the complainant's testimony did not render such testimony incredible as a matter of law ( see People v. Green, 107 A.D.3d 915, 967 N.Y.S.2d 753; People v. Wilson, 50 A.D.3d 711, 854 N.Y.S.2d 540; People v. Sedney, 6 A.D.3d 632, 633, 774 N.Y.S.2d 799).
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; 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 inconsistencies in the complainant's testimony cited by the defendant were not of such magnitude as to render the testimony incredible or unreliable ( see People v. Fernandez, 115 A.D.3d 977, 982 N.Y.S.2d 174; People v. Gelmi, 113 A.D.3d 790, 978 N.Y.S.2d 364; People v. Scipio, 61 A.D.3d 899, 878 N.Y.S.2d 747).
The defendant's contention regarding certain remarks made by the prosecutor during summation is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, the majority of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair response to arguments made by defense counsel in summation, or fair comment upon the evidence ( see People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Dobbins, 123 A.D.3d 1140, 997 N.Y.S.2d 501). To the extent that some of the prosecutor's comments were improper, any error was not so egregious as to have deprived the defendant of a fair trial ( see People v. Portes, 125 A.D.3d 794, 4 N.Y.S.3d 97; People v. Caldwell, 115 A.D.3d 870, 982 N.Y.S.2d 356; People v. Stevens, 114 A.D.3d 969, 970, 980 N.Y.S.2d 841; People v. Tiro, 100 A.D.3d 663, 952 N.Y.S.2d 893).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).