Opinion
2012-07-11
The PEOPLE, etc., respondent, v. Bernard MUTTERPERL, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered August 26, 2009, convicting him of attempted kidnapping in the second degree, burglary in the second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child, 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, 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 attempted kidnapping in the second degree beyond a reasonable doubt ( see People v. Antonio, 58 A.D.3d 515, 516, 872 N.Y.S.2d 17;People v. Cruz, 296 A.D.2d 22, 25, 745 N.Y.S.2d 528;People v. Carter, 263 A.D.2d 958, 958–959, 695 N.Y.S.2d 458;People v. Cassano, 254 A.D.2d 92, 92–93, 681 N.Y.S.2d 1). The defendant's intent may be inferred from his conduct and the surrounding circumstances ( see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094;see e.g. People v. King, 85 A.D.3d 820, 925 N.Y.S.2d 561).
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt of burglary in the second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt of burglary in the second degree ( see People v. Occhione, 94 A.D.3d 1021, 942 N.Y.S.2d 185;People v. Albanese, 84 A.D.3d 1107, 922 N.Y.S.2d 813), unlawful imprisonment in the second degree ( see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621), and endangering the welfare of a child ( see People v. Smith, 69 A.D.3d 657, 891 N.Y.S.2d 294;People v. Bray, 46 A.D.3d 1232, 1234, 848 N.Y.S.2d 738).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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).
The defendant contends that the trial court erred in denying his Batson challenge ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) with respect to the prosecutor's use of a peremptory challenge to exclude a certain person from the jury. The prosecutor provided a race-neutral explanation for excluding the prospective juror at issue ( id. at 97, 106 S.Ct. 1712). The trial court's determination that this explanation was nonpretextual is entitled to deference on appeal and should not be disturbed where, as here, it is supported by the record ( see People v. Hernandez, 75 N.Y.2d 350, 356–357, 553 N.Y.S.2d 85, 552 N.E.2d 621,affd.500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;People v. Dailey, 86 A.D.3d 579, 580, 926 N.Y.S.2d 662;People v. Kaplan, 176 A.D.2d 821, 575 N.Y.S.2d 146).
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of the right to a fair trial is unpreserved for appellate review, as he either failed to raise any objections to the challenged remarks or failed to seek further relief after objections were sustained and curative instructionsgiven ( seeCPL 470.05[2]; People v. Cummins, 59 A.D.3d 458, 872 N.Y.S.2d 532;People v. Erskine, 90 A.D.3d 674, 675, 933 N.Y.S.2d 740). In any event, the challenged remarks were either fair comment, responsive to the defense's summation, or within the bounds of permissible rhetorical comment ( see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Canales, 88 A.D.3d 1007, 931 N.Y.S.2d 407;People v. Cummins, 59 A.D.3d 458, 872 N.Y.S.2d 532).
In the context of this case, the Supreme Court providently exercised its discretion in precluding expert testimony on false confessions ( see People v. Bedessie, 19 N.Y.3d 147;People v. Walker, 87 A.D.3d 1352, 930 N.Y.S.2d 347;People v. Crews, 74 A.D.3d 983, 902 N.Y.S.2d 380).
The defendant's remaining contention is without merit.