Opinion
04-17-2024
The PEOPLE, etc., respondent, v. Garry MILBURN, appellant
Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, and Jaedon J. Huie of counsel), for respondent.
Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, and Jaedon J. Huie of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., DEBORAH A. DOWLING, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered August 8, 2019, convicting him of assault in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
For his actions of, inter alia, injuring his girlfriend, and also punching the girlfriend’s daughter with a level of force that resulted in severe fracturing of the daughter’s jaw, which required surgery, the immobilization of the daughter’s mouth with metal bars, the administration of morphine for pain, and the necessity of a liquid diet for more than one month, the defendant was convicted of assault in the third degree and assault in the second degree, respectively.
[1] 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 beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1). Based on the trial evidence, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant intentionally injured his girlfriend and her daughter to support his convictions of assault in the third degree and assault in the second degree, respectively (see Penal Law §§ 10.00[9], [10]; 120.00[1]; 120.05[1]; People v. Wheeler, 40 N.Y.3d 925, 926, 192 N.Y.S.3d 42, 213 N.E.3d 102; People v. Garland, 32 N.Y.3d 1094, 1096, 90 N.Y.S.3d 618, 114 N.E.3d 1071; People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039; People v. Seymore, 106 A.D.3d 1033, 964 N.Y.S.2d 668). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d at 349, 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).
[2] The Supreme Court providently exercised its discretion in permitting the People to offer into evidence orders of protection issued against the defendant, as their probative value as evidence of consciousness of guilt outweighed their prejudicial effect (see People v. Chunn, 181 A.D.3d 706, 707, 117 N.Y.S.3d 601; accord People v. Chrisostome, 167 A.D.3d 644, 86 N.Y.S.3d 903).
[3–5] The defendant’s challenges to various questions posed by the prosecutor during cross-examination, as well as comments made during summation, are unpreserved for appellate review. In the few instances when the defendant did object, he either made only general objections or failed to request a curative instruction when an objection was sustained (see CPL 470.05[2]; People v. Colarco, 52 N.Y.2d 801, 802, 436 N.Y.S.2d 878, 418 N.E.2d 393; People v. Haripersaud, 24 A.D.3d 468, 469, 806 N.Y.S.2d 221). In any event, contrary to the defendant’s contention, the prosecutor’s questions to the defendant on cross-examination properly addressed his direct testimony and inferences drawn therefrom (see People v. Williams, 208 A.D.3d 899, 901, 173 N.Y.S.3d 645). Furthermore, most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence (see People v. Hogue, 166 A.D.3d 1009, 1010, 88 N.Y.S.3d 465; People v. Mairena, 160 A.D.3d 986, 988, 75 N.Y.S.3d 246, affd 34 N.Y.3d 473, 121 N.Y.S.3d 731, 144 N.E.3d 340), were responsive to arguments and theories presented in defense counsel’s summation (see People v. Gross, 88 A.D.3d 905, 906, 931 N.Y.S.2d 129), or were permissible rhetorical comment (see People v. Santiago, 194 A.D.3d 853, 854, 143 N.Y.S.3d 891; People v. Caldwell, 115 A.D.3d 870, 871, 982 N.Y.S.2d 356). To the extent that some of the prosecutor’s summation comments were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v. Kiarie, 198 A.D.3d 814, 815, 155 N.Y.S.3d 212; People v. Rahman, 189 A.D.3d 1616, 1617, 134 N.Y.S.3d 819; People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589), and any other error in this regard was harmless, as there was overwhelming evidence of the defendant’s guilt and no significant probability that these errors 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; People v. Leon, 222 A.D.3d 778, 779, 201 N.Y.S.3d 473).
The defendant was afforded the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The defendant’s remaining contentions are without merit.
BRATHWAITE NELSON, J.P., DOWLING, VOUTSINAS and LOVE, JJ., concur.