Opinion
108968
09-15-2022
The PEOPLE of the State of New York, Respondent, v. Kenneth LEIGH, Appellant.
Cappy Weiner, Kingston, for appellant. Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.
Cappy Weiner, Kingston, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.
Before: Clark, J.P., Pritzker, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from a judgment of the County Court of Rensselaer County (Andrew G. Ceresia, J.), rendered June 24, 2016, upon a verdict convicting defendant of the crime of burglary in the second degree.
Defendant was charged by indictment with burglary in the second degree, robbery in the second degree, grand larceny in the fourth degree, petit larceny and two other misdemeanor offenses stemming from allegations that, in March 2015, defendant and two others unlawfully entered an apartment in the Town of Schodack, Rensselaer County from which they stole property while the victim was inside. Following a jury trial, defendant was convicted of burglary in the second degree and acquitted of the remaining counts. After the jury was discharged, defendant orally moved to set aside the verdict arguing that his conviction for burglary in the second degree was repugnant to and inconsistent with the jury finding him not guilty of the remaining counts. County Court denied the motion. After another unsuccessful motion to set aside the verdict, defendant was sentenced, as a second felony offender, to a prison term of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.
Count six of the indictment, charging defendant with animal cruelty in violation of Agriculture and Markets Law § 353, was dismissed upon consent at the close of the People's proof.
Defendant contends that the victim's identification during trial was unduly influenced by a prior photo array in which his eyes were overly distinctive. We disagree. "In cases where there has been no pretrial identification procedure or the witness is unable to render a positive identification of the defendant, and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v. Johnson, 197 A.D.3d 725, 727, 153 N.Y.S.3d 156 [2d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 792, 178 N.E.3d 439 [2021] ; see People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593 [4th Dept. 2004], lv denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004] ). Here, it is undisputed that the victim was unable to render a positive identification from the photo array. Therefore, she was not precluded from making an in-court identification of defendant (see People v. Johnson, 197 A.D.3d at 727, 153 N.Y.S.3d 156 ; People v. Morales, 176 A.D.3d 1235, 1235, 109 N.Y.S.3d 650 [2d Dept. 2019] ). Notably, during cross-examination of the victim, defendant questioned her about potential suggestiveness that may have tainted the photo array and subsequent in-court identification, and then discussed those weaknesses during summation. Indeed, "[t]he victim's prior inability to identify defendant in [the] photo array goes to the weight to be given her [in-court] identification, not its admissibility" ( People v. Fuller, 185 A.D.2d 446, 449, 586 N.Y.S.2d 366 [3d Dept. 1992], lv denied 80 N.Y.2d 974, 591 N.Y.S.2d 144, 605 N.E.2d 880 [1992] ; see People v. Grant, 94 A.D.3d 1139, 1140, 942 N.Y.S.2d 223 [2d Dept. 2012], lv denied 20 N.Y.3d 1099, 965 N.Y.S.2d 795, 988 N.E.2d 533 [2013] ). Accordingly, defendant's right to a fair trial was not infringed by the victim's positive in-court identification.
Defendant also asserts that he was deprived of a fair trial by virtue of two inflammatory remarks that the prosecutor made during summation. Although we agree with defendant that the challenged comments were improper, defendant was not substantially prejudiced and his due process right to a fair trial was not violated. "Here, the isolated comments of the prosecutor during ... summation, while improper, were met with sustained objections and immediate curative instructions" ( People v. Story, 81 A.D.3d 1168, 1169, 917 N.Y.S.2d 403 [3d Dept. 2011] ; see People v. Nadal, 131 A.D.3d 729, 731, 14 N.Y.S.3d 591 [3d Dept. 2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015] ). Moreover, these comments "were not so egregious, when viewed in the context of the summation as a whole, to establish a flagrant and pervasive pattern of misconduct sufficient to deprive defendant of a fair trial" ( People v. Guay, 72 A.D.3d 1201, 1203–1204, 898 N.Y.S.2d 353 [3d Dept. 2010] [internal quotation marks and citations omitted], affd 18 N.Y.3d 16, 935 N.Y.S.2d 567, 959 N.E.2d 504 [2011] ; see People v. Gertz, 204 A.D.3d 1166, 1171, 166 N.Y.S.3d 739 [3d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 434, 191 N.E.3d 386 [2022] ).
We agree with defendant that the first comment constituted an improper appeal to the jurors’ fears and sympathy (see People v. Spruill, 5 A.D.3d 318, 320, 775 N.Y.S.2d 249 [1st Dept. 2004] ), lv denied 3 N.Y.3d 648, 782 N.Y.S.2d 419, 816 N.E.2d 209 [2004] ), and the second was improper because the prosecutor "expressed his personal opinion in an effort to vouch for the credibility of [a] witness[ ]" (People v. Casanova, 119 A.D.3d 976, 978–979, 988 N.Y.S.2d 713 [3d Dept. 2014] ).
Finally, defendant's remaining contention, that the verdict convicting him of burglary in the second degree is repugnant given that he was acquitted of the remaining counts, is unpreserved because he failed to raise an objection to the verdict before the jury was discharged (see People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271 [1982] ; People v. Agudio, 194 A.D.3d 1270, 1275, 149 N.Y.S.3d 326 [3d Dept. 2021] ).
Clark, J.P., Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed.