Disposition: Applications for Criminal Leave to appeal denied Decision Reported Below: 2d Dept: 192 A.D.3d 1047 (Queens)
The argument that the prosecutor's remark was unduly prejudicial, or made a difference to the verdict, is unpersuasive, as it merely reflected a matter of well-understood common knowledge and human experience (see People v Nelson, 215 A.D.2d 782 [hypodermic needle]; see also People v Brown, 126 A.D.3d 516, 519 [hypodermic needle], revd on other grounds, 28 N.Y.3d 392; Matter of Markquel S., 93 A.D.3d 505 [pencil as dangerous instrument]). The remark was not so egregious, flagrant, or pervasive as to have deprived the defendant of a fair trial (see People v Cagan, 185 A.D.3d 836, 838; see also People v Mohabir, 192 A.D.3d 1047, 1048; People v Ortiz, 189 A.D.3d 891, 892; People v Sedeno, 188 A.D.3d 1269, 1270; People v Escamilla, 168 A.D.3d 758, 760; People v Gomez, 153 A.D.3d 724, 725-726; People v Persaud, 98 A.D.3d 527).
The argument that the prosecutor's remark was unduly prejudicial, or made a difference to the verdict, is unpersuasive, as it merely reflected a matter of well-understood common knowledge and human experience (seePeople v. Nelson, 215 A.D.2d 782, 627 N.Y.S.2d 412 [hypodermic needle]; see alsoPeople v. Brown, 126 A.D.3d 516, 519, 7 N.Y.S.3d 19 [hypodermic needle], revd on other grounds, 28 N.Y.3d 392, 45 N.Y.S.3d 320, 68 N.E.3d 45 ; Matter of Markquel S., 93 A.D.3d 505, 940 N.Y.S.2d 247 [pencil as dangerous instrument]). The remark was not so egregious, flagrant, or pervasive as to have deprived the defendant of a fair trial (seePeople v. Cagan, 185 A.D.3d 836, 838, 128 N.Y.S.3d 26 ; see alsoPeople v. Mohabir, 192 A.D.3d 1047, 1048, 141 N.Y.S.3d 315 ; People v. Ortiz, 189 A.D.3d 891, 892, 137 N.Y.S.3d 139 ; People v. Sedeno, 188 A.D.3d 1269, 1270, 132 N.Y.S.3d 875 ; People v. Escamilla, 168 A.D.3d 758, 760, 91 N.Y.S.3d 197 ; People v. Gomez, 153 A.D.3d 724, 725–726, 61 N.Y.S.3d 70 ; People v. Persaud, 98 A.D.3d 527, 949 N.Y.S.2d 431 ). Interestingly enough, defense counsel, in her own summation, thought it proper to refer to "our conversation from jury selection."
The defendant's contention that she was deprived of her right to a fair trial by certain comments made by the prosecutor and by the decedent's husband, who was a witness for the prosecution, is, for the most part, unpreserved for appellate review (see CPL 470.05[2]; People v Mohabir, 192 A.D.3d 1047; People v Sedeno, 188 A.D.3d 1269, 1270; People v Williams, 132 A.D.3d 785, 785). In any event, the defendant's contention is without merit.
To the extent that the defendant challenges the sufficiency of the evidence before the grand jury, this contention is foreclosed by her "conviction upon a jury verdict based upon legally sufficient evidence" ( People v. Brims, 145 A.D.3d 1025, 1027, 45 N.Y.S.3d 488 ; see CPL 210.30[6] ). The defendant's contention that she was deprived of her right to a fair trial by certain comments made by the prosecutor and by the decedent's husband, who was a witness for the prosecution, is, for the most part, unpreserved for appellate review (see CPL 470.05[2] ; People v. Mohabir, 192 A.D.3d 1047, 141 N.Y.S.3d 315 ; People v. Sedeno, 188 A.D.3d 1269, 1270, 132 N.Y.S.3d 875 ; People v. Williams, 132 A.D.3d 785, 785, 17 N.Y.S.3d 509 ). In any event, the defendant's contention is without merit.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Queens County (Ushir Pandit-Durant, J.), imposed April 12, 2021, after remittitur from this Court for resentencing (see People v Mohabir, 192 A.D.3d 1047), on the ground that the period of postrelease supervision imposed as part of the resentence was excessive. ORDERED that the resentence is affirmed.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), imposed April 12, 2021, after remittitur from this Court for resentencing (seePeople v. Mohabir, 192 A.D.3d 1047, 141 N.Y.S.3d 315 ), on the ground that the period of postrelease supervision imposed as part of the resentence was excessive. ORDERED that the resentence is affirmed.
In any event, the contention is without merit. Although we agree with the defendant that the prosecutor should not have said, in her opening statement, that the defendant "liv[ed] off the misery of his customers," since the only "customer" in this case was an undercover police officer, that isolated comment was not so egregious as to require reversal (see People v Mohabir, 192 A.D.3d 1047, 1047-1048; People v Evans, 78 A.D.3d 1074, 1074). 2
In any event, the contention is without merit. Although we agree with the defendant that the prosecutor should not have said, in her opening statement, that the defendant "liv[ed] off the misery of his customers," since the only "customer" in this case was an undercover police officer, that isolated comment was not so egregious as to require reversal (seePeople v. Mohabir, 192 A.D.3d 1047, 1047–1048, 141 N.Y.S.3d 315 ; People v. Evans, 78 A.D.3d 1074, 1074, 910 N.Y.S.2d 693 ). The sentence imposed was excessive to the extent indicated (seePeople v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
In any event, the contention is without merit. Although we agree with the defendant that the prosecutor should not have said, in her opening statement, that the defendant "liv[ed] off the misery of his customers," since the only "customer" in this case was an undercover police officer, that isolated comment was not so egregious as to require reversal (see People v Mohabir, 192 A.D.3d 1047, 1047-1048; People v Evans, 78 A.D.3d 1074, 1074). The sentence imposed was excessive to the extent indicated (see People v Suitte, 90 A.D.2d 80).