Opinion
2014–12015 Ind.No. 13–00763
12-20-2017
The PEOPLE, etc., respondent, v. Jason VAUGHAN, appellant.
Law Office of Stephen N. Preziosi P.C., New York, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Maria Wager and Steven A. Bender of counsel), for respondent.
Law Office of Stephen N. Preziosi P.C., New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Maria Wager and Steven A. Bender of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Westchester County (Neary, J.), rendered November 19, 2014, convicting him of attempted robbery in the second degree, attempted grand larceny in the fourth degree, and assault in the second degree, upon a jury verdict, adjudicating him a youthful offender, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his convictions were not supported by legally sufficient evidence is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, 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. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), 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 County Court properly allowed testimony from police officers establishing that they were familiar with the defendant, as this evidence was relevant to the highly contested issue of identity and did not necessarily implicate the defendant in prior uncharged criminal conduct (see People v. Bones, 52 A.D.3d 522, 522–523, 860 N.Y.S.2d 124 ; People v. Reid, 259 A.D.2d 505, 506, 686 N.Y.S.2d 766 ).
Furthermore, the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) constituted a provident exercise of discretion, and did not deprive the defendant of the right to testify on his own behalf (see People v. Smith, 18 N.Y.3d 588, 594, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; People v. Brown, 150 A.D.3d 871, 55 N.Y.S.3d 295 ; People v. Manigat, 136 A.D.3d 614, 615, 24 N.Y.S.3d 397 ; People v. White, 60 A.D.3d 1095, 1096, 877 N.Y.S.2d 339 ).
The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation is unpreserved for appellate review, since the defendant failed to object to the remarks he now challenges (see CPL 470.05[2] ; People v. Flanagan, 132 A.D.3d 693, 694, 17 N.Y.S.3d 178, affd 28 N.Y.3d 644, 71 N.E.3d 541 ). In any event, most of the challenged remarks were fair comment on the evidence and fair response to the arguments made by defense counsel in summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Nanand, 137 A.D.3d 945, 947, 26 N.Y.S.3d 585 ; People v. Willis, 122 A.D.3d 950, 950, 997 N.Y.S.2d 472 ). To the extent that some of the prosecutor's remarks made during summation were improper, those remarks did not deprive the defendant of a fair trial (see People v. Nanand, 137 A.D.3d at 947–948, 26 N.Y.S.3d 585 ; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146 ; People v. Walston, 196 A.D.2d 903, 904, 602 N.Y.S.2d 152 ).
The defendant's contention that he was deprived of his right to confrontation and cross-examination of one of the People's witnesses is based on matter dehors the record and not reviewable on direct appeal (see CPL 440.10 ; People v. Boyce, 118 A.D.3d 1016, 1017, 988 N.Y.S.2d 262 ; People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818 ).
LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.