Opinion
2015–03903 Ind. 1451/14
01-17-2018
The PEOPLE, etc., respondent, v. Maurice MCARTHUR, appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kayonia L. Whetstone of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kayonia L. Whetstone of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered April 28, 2015, convicting him of assault in the second degree (two counts), unlawful fleeing a police officer in a motor vehicle in the third degree, reckless endangerment in the second degree, reckless driving, obstructing governmental administration in the second degree, resisting arrest, leaving the scene of an incident without reporting, and aggravated unlicensed operation of a motor vehicle in the third 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 that it was legally sufficient to establish the defendant's guilt of two counts of assault in the second degree ( Penal Law § 120.05[3] ), including the element of physical injury ( Penal Law § 10.00[9] ), beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the evidence (see CPL 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 witnesses, hear the testimony, and observe demeanor (see 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 as to those two counts was not against the weight of the evidence. The defendant contends that certain remarks made by the prosecutor during summation deprived him of a fair trial. A prosecutor has "broad latitude during summation, particularly when responding to the defense counsel's summation" ( People v. Cariola, 276 A.D.2d 800, 800, 715 N.Y.S.2d 162, citing People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; see People v. Rhodes, 11 A.D.3d 487, 488, 782 N.Y.S.2d 788 ). Here, most of the prosecutor's remarks were either fair comment on the evidence presented, fair response to the defendant's summation, or permissible rhetorical comment (see People v. Pearson, 29 A.D.3d 711, 813 N.Y.S.2d 680 ; People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614 ; People v. Collins, 12 A.D.3d 33, 784 N.Y.S.2d 489 ; cf. People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Smith, 28 A.D.3d 688, 689, 812 N.Y.S.2d 370 ; People v. Lyking, 147 A.D.2d 504, 504–505, 537 N.Y.S.2d 314 ). To the extent that any of the remaining challenged remarks were improper, their impact was alleviated by the Supreme Court's curative instructions (see People v. Baker, 14 N.Y.3d 266, 273–274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 366 N.E.2d 279 ; People v. Ashwal, 39 N.Y.2d at 111, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Daley, 50 A.D.3d 1051, 855 N.Y.S.2d 678 ; People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 400, 787 N.Y.S.2d 399), and those comments did not deprive the defendant of a fair trial. Further, any other error in this regard was harmless, as the evidence of the defendant's guilt was overwhelming, and there is no significant probability that any error contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
The defendant's remaining contention is without merit.
CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.