Opinion
2011-11-29
The PEOPLE, etc., respondent, v. Isaiah McCOY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered February 10, 2009, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the trial court's questioning during defense counsel's cross-examination of a witness is unpreserved for appellate review ( see People v. Charleston, 56 N.Y.2d 886, 888, 453 N.Y.S.2d 399, 438 N.E.2d 1114; People v. Rivers, 85 A.D.3d 826, 924 N.Y.S.2d 841, lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101; People v. Bembury, 14 A.D.3d 575, 576, 787 N.Y.S.2d 661). In any event, while the court, at times, took an active role in the questioning during cross-examination, its conduct, “measured both qualitatively and quantitatively” ( People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 422 N.E.2d 556), did not deprive the defendant of a fair trial ( see People v. Rivers, 85 A.D.3d 826, 924 N.Y.S.2d 841; People v. Perez, 30 A.D.3d 542, 816 N.Y.S.2d 362; People v. Bembury, 14 A.D.3d at 576, 787 N.Y.S.2d 661). Any potential prejudice to the defendant was minimized by the trial court's instructions advising the jury that the trial court had no opinion concerning the case ( see People v. Rivers, 85 A.D.3d 826, 924 N.Y.S.2d 841; People v. Charles–Pierre, 31 A.D.3d 659, 660, 818 N.Y.S.2d 303; People v. Bembury, 14 A.D.3d at 576, 787 N.Y.S.2d 661).
The defendant's contention that the prosecutor improperly vouched for an eyewitness during his summation is without merit. The challenged remarks were responsive to defense counsel's summation ( see People v. Carey, 67 A.D.3d 925, 888 N.Y.S.2d 615). The defendant's remaining contentions that he was deprived of a fair trial by certain other remarks made by the prosecutor during summation are unpreserved for appellate review ( see CPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Tonge, 93 N.Y.2d 838, 838–839, 688 N.Y.S.2d 88, 710 N.E.2d 653). In any event, the challenged remarks were either fair comment on the evidence adduced at trial or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Jones, 76 A.D.3d 716, 717, 907 N.Y.S.2d 306; People v. Diaz, 59 A.D.3d 459, 459–460, 872 N.Y.S.2d 533).
ANGIOLILLO, J.P., HALL, AUSTIN and MILLER, JJ., concur.