Opinion
2015–05800 Ind. No. 1989/04
05-16-2018
The PEOPLE, etc., respondent, v. Kenneth ROGERS, appellant.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Joseph N. Ferdenzi, Bronx and Nancy Fitzpatrick Talcott of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Joseph N. Ferdenzi, Bronx and Nancy Fitzpatrick Talcott of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered June 9, 2015, convicting him of burglary in the second degree, possession of burglar's tools, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
At trial, the People's main eyewitness, a retired police officer, testified that, while planting flowers in front of his home, he saw the defendant, who he had never seen before, enter a house across the street. After the defendant entered the house, the retired police officer heard loud banging noises emanating from inside the house, saw the defendant exit the house carrying a laundry bag, was unable to obtain a plausible answer from the defendant as to the reason for his presence there, and immobilized the defendant until police officers arrived shortly thereafter. When the police officers arrived, they found that the defendant had a watch, rings, and a screwdriver on his person, and the laundry bag he was carrying contained a power drill and a water bottle filled with loose currency. The residents of the second floor apartment inside the house testified that the apartment had been ransacked, and its front door had been kicked in. Moreover, the residents of that apartment testified that the items found on the defendant, a man they did not know, belonged to them and had been secured inside their apartment earlier that day.
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 burglary in the second degree, possession of burglar's tools, petit larceny, and criminal possession of stolen property in the fifth degree beyond a reasonable doubt (see People v. Borges, 90 A.D.3d 1067, 1067–1068, 935 N.Y.S.2d 621 ; People v. Diaz, 53 A.D.3d 504, 505, 862 N.Y.S.2d 73 ). 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 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 ; 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's contentions that, during her summation, the prosecutor vouched for the credibility of witnesses, misrepresented the facts, shifted the burden of proof, denigrated the defense, and inflamed the jury, are unpreserved for appellate review. The defendant either failed to object to the comments, failed to request further curative instructions after his objection was granted, or failed to timely move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2] ; People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017 ; People v. Salnave, 41 A.D.3d 872, 874, 838 N.Y.S.2d 657 ; People v. Wright, 5 A.D.3d 873, 875, 773 N.Y.S.2d 486 ). In any event, the challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), fair response to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Moore, 29 A.D.3d 825, 825–826, 814 N.Y.S.2d 277 ), or harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Hill, 286 A.D.2d 777, 778, 730 N.Y.S.2d 723 ).
The defendant further contends that he was deprived of a fair trial when the prosecutor asked him on cross-examination whether various parts of the testimony of the People's witnesses were accurate. The contention is unpreserved for appellate review because no objection was made to such questioning of the defendant at the trial (see People v. Lawrence, 4 A.D.3d 436, 437, 771 N.Y.S.2d 362 ). In any event, the prosecutor's cross-examination questions were not improper, but "both relevant and material to the credibility, veracity and honesty" of the defendant ( People v. Coleman, 56 N.Y.2d 269, 273, 451 N.Y.S.2d 705, 436 N.E.2d 1307 ).The defendant's claim that he received ineffective assistance of counsel, which is based solely upon his counsel's failure to preserve his current contentions regarding the prosecutor's conduct during cross-examination and summation, is also without merit (see e.g. People v. High, 119 A.D.3d 959, 960, 989 N.Y.S.2d 873 ).
The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and its progeny is without merit (see People v. Giles, 24 N.Y.3d 1066, 1068, 2 N.Y.S.3d 30, 25 N.E.3d 943 ; People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913 ; People v. Dingle, 147 A.D.3d 1080, 1081, 47 N.Y.S.3d 457 ). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.