Opinion
09-27-2017
The PEOPLE, etc., respondent, v. Garnet GURDON, appellant.
Randall D. Unger, Bayside, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Antara D. Kanth of counsel), for respondent.
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Antara D. Kanth of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered December 2, 2015, convicting him of attempted rape in the first degree (two counts), sexual abuse in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ; see People v. Romero, 7 N.Y.3d 633, 640–641, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
The defendant's contention that the Supreme Court erred in admitting testimony of the complainant's outcry to her mother and grandmother is unpreserved for appellate review since no objection was raised to the admission of that testimony (see CPL 470.05[2] ; People v. Renaud, 137 A.D.3d 818, 820, 27 N.Y.S.3d 578 ; People v. Honghirun, 133 A.D.3d 882, 883, 20 N.Y.S.3d 409, affd. 29 N.Y.3d 284, 56 N.Y.S.3d 275, 78 N.E.3d 804 ; People v. Jean, 117 A.D.3d 875, 878, 985 N.Y.S.2d 669 ; People v. Stalter, 77 A.D.3d 776, 777, 909 N.Y.S.2d 516 ). Moreover, the defendant's contention was waived when defense counsel elicited the challenged testimony on cross-examination (see People v. Renaud, 137 A.D.3d at 820, 27 N.Y.S.3d 578 ; People v. Honghirun, 133 A.D.3d at 883, 20 N.Y.S.3d 409 ; People v. Jean, 117 A.D.3d at 878, 985 N.Y.S.2d 669 ; People v. Stalter, 77 A.D.3d at 777, 909 N.Y.S.2d 516 ), apparently as a trial strategy to use the complainant's belated disclosure of the crimes against her to demonstrate that she was unworthy of belief (see People v. Honghirun, 27 N.Y.3d 965, 36 N.Y.S.3d 626, 56 N.E.3d 906 ).
The propriety of the prosecutor's comments during summation was, for the most part, unpreserved for appellate review, and, in any event, the prosecutor's comments did not deprive the defendant of a fair trial. It is "the right of counsel during summation ‘to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide’ " ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564, quoting Williams v. Brooklyn
El. R.R. Co., 126 N.Y. 96, 102, 26 N.E. 1048 ; see People v. Jones, 294 A.D.2d 517, 517, 742 N.Y.S.2d 562 ). Comments made by a prosecutor in summation are proper if they constitute a fair response to arguments raised by the defense (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Lugg, 124 A.D.3d 679, 680, 998 N.Y.S.2d 459 ; People v. Green, 90 A.D.3d 948, 948, 934 N.Y.S.2d 716 ; People v. Barnes, 33 A.D.3d 811, 812, 826 N.Y.S.2d 283 ). Further, "a prosecutor may engage in fair comment on the evidence and the inferences to be drawn therefrom" ( People v. Jones, 294 A.D.2d at 517, 742 N.Y.S.2d 562 ; see People v. Brown, 139 A.D.3d 964, 966, 31 N.Y.S.3d 587 ). However, in summation, the prosecutor must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments that have a tendency to prejudice the jury against the accused (see People v. Singh, 128 A.D.3d 860, 863, 9 N.Y.S.3d 324 ).
Here, the prosecutor's comment that the complainant should be believed because she had been interviewed by law enforcement authorities and testified before the grand jury, and because "she has never wavered," was a fair response to the defense counsel's argument that the complainant's account was not plausible, and may have involved "implanted memories." The prosecutor's statement that the complainant had no motive to lie was a fair response to the defense counsel's argument in summation that "any little thing could set a kid off" based upon small or big grievances (see People v. Marcus, 112 A.D.3d 652, 975 N.Y.S.2d 771 ; People v. Bolden, 216 A.D.2d 45, 627 N.Y.S.2d 660 ; People v. Glenn, 140 A.D.2d 623, 528 N.Y.S.2d 663 ). The prosecutor's argument that there was no evidence of any reason for the prosecution witnesses to lie was improper (see People v. Singh, 128 A.D.3d at 863, 9 N.Y.S.3d 324 ), but under the circumstances of this case, it did not deprive the defendant of a fair trial. Similarly, the prosecutor's comments that the complainant would forever associate the end of her mother's pregnancy with the defendant's sexual abuse were designed to appeal to the jury's sympathy and were, therefore, improper (see People v. Casiano, 148 A.D.3d 1044, 1045, 50 N.Y.S.3d 439 ; People v. Redd, 141 A.D.3d 546, 550, 35 N.Y.S.3d 402 ; People v. Singh, 128 A.D.3d at 864, 9 N.Y.S.3d 324 ), but did not deprive the defendant of a fair trial. Moreover, under the circumstances of this case, the cumulative effect of the errors noted above did not deprive the defendant of a fair trial.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).