Opinion
2013–11120 Ind. No. 1633/11
03-24-2021
The PEOPLE, etc., respondent, v. Compton MOHABIR, appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, Merri Turk Lasky, and Sharon Brodt of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, Merri Turk Lasky, and Sharon Brodt of counsel), for respondent.
LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard L. Buchter, J.), rendered November 12, 2013, convicting him of sexual abuse in the first degree, upon a jury verdict, and imposing sentence upon his adjudication as a second felony offender.
ORDERED that the judgment is modified, on the law, by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant's contentions regarding prosecutorial misconduct during the opening statement and summation are, for the most part, unpreserved for appellate review (see CPL 470.05[2] ; People v. Saalfield, 185 A.D.3d 723, 723, 124 N.Y.S.3d 841 ; People v. Fletcher, 130 A.D.3d 1063, 1065, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111 ). In any event, the challenged remarks do not warrant reversal, as they were either fair response to the arguments and issues raised by the defense (see People v. Bynum, 171 A.D.3d 1204, 1205, 98 N.Y.S.3d 641 ; People v. Sykes, 151 A.D.2d 523, 542 N.Y.S.2d 311 ; People v. Chavez, 207 A.D.2d 705, 705–706, 616 N.Y.S.2d 504 ), fair comment on the evidence and the inferences to be drawn therefrom (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), cured by the Supreme Court's charge to the jury, to which defense counsel did not object (see People v. Pocesta, 71 A.D.3d 920, 921, 895 N.Y.S.2d 871 ), or not so pervasive or egregious, either individually or cumulatively, as to deprive the defendant of a fair trial (see People v. Brown, 172 A.D.3d 1399, 1399, 99 N.Y.S.3d 655 ). Moreover, any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's conviction (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 contention that he received ineffective assistance of counsel at trial is without merit (see People v. Wragg, 26 N.Y.3d 403, 409, 23 N.Y.S.3d 600, 44 N.E.3d 898 ; People v. Grace, 179 A.D.3d 1092, 1093, 114 N.Y.S.3d 668 ; People v. Arroyo, 131 A.D.3d 1257, 1258, 16 N.Y.S.3d 769 ; People v. Robles, 116 A.D.3d 1071, 1071, 983 N.Y.S.2d 885 ). The record reveals that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Alphonso, 144 A.D.3d 1168, 1169, 43 N.Y.S.3d 83 ).
As the People correctly concede, the defendant's federal conviction of conspiracy to deal in firearms under section 371 of title 18 of the United States Code is not a "predicate felony conviction" ( Penal Law § 70.06[1][a], [b] ), because the federal conspiracy statute contains different elements than its equivalent in New York such that it is possible to violate the federal statute without engaging in conduct that is a felony in New York (see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; People v. Donnelly, 89 A.D.2d 872, 873–874, 453 N.Y.S.2d 235 ). Accordingly, we modify the judgment by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Queens County, for resentencing.
The defendant's remaining contention has been rendered academic in light of our determination.
AUSTIN, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.