Summary
In People v. White, 173 A.D.2d 897, 569 N.Y.S.2d 816 (3rd Dept.1991) the court focused on the fact that the defendant was in possession of the keys to a vehicle in their assessment of whether proof at trial excluded the possibility of the defendant's innocence.
Summary of this case from People v. RosaOpinion
May 2, 1991
Appeal from the County Court of Albany County (Aison, J.).
During the evening of July 1, 1988, police officers in the Town of Colonie, Albany County, responded to two separate reports of "hit and run property damage automobile accidents" occurring on State Route 9 within a half mile of each other. The officer at the first accident was given a description and license plate number of the offending vehicle, which had left the scene of that accident. The officer at the second accident was told that the offending vehicle was parked at a nearby gas station. Officers proceeded to the gas station where defendant was found attempting to change a flat tire on the identified vehicle. The vehicle had property damage and matched the description and license plate number as reported in the first accident. The investigating officers, observing signs of intoxication, conducted field sobriety tests on defendant. Defendant was then arrested for driving while under the influence of alcohol and for leaving the scene of an incident without reporting. He was thereafter indicted on the same charges and convicted of both following a jury trial.
On this appeal, defendant first contends that the prosecutor's conduct during closing summations was prejudicial; defendant takes issue with objections made during his closing argument and subsequent comments made during the People's summation. The record reveals that the prosecutor made 16 objections during defendant's closing argument, most of which were sustained and the remainder of which had good-faith bases. On the whole, these objections did not deprive defendant of a fair trial. Defendant argues that during the People's summation the prosecutor verbally attacked defense counsel, essentially testified as an unsworn witness and improperly appealed to the jury's emotions by making a "safe streets argument". From our review of the record, we are convinced that the claimed prosecutorial misconduct was insufficient to warrant a reversal (see, People v Bessard, 148 A.D.2d 49, 54-55, lv denied 74 N.Y.2d 845; see also, People v Hall, 167 A.D.2d 758). Nor do we find that there was a pattern of flagrant, pervasive disregard for the limitations on proper summation (see, People v Gathers, 147 A.D.2d 734, 736, lv denied 73 N.Y.2d 1015). When prosecutorial excess occurred, County Court interjected and gave appropriate curative instructions (see, People v Thiessen, 158 A.D.2d 737, 739, mod on other grounds 76 N.Y.2d 816). When the improper comments are assessed in the context of the entire summation and the entire trial (see, People v Galloway, 54 N.Y.2d 396, 401), they were rendered harmless by the overwhelming evidence of guilt (see, People v Blair, 148 A.D.2d 767, 769, lv denied 74 N.Y.2d 661; see also, People v Crimmins, 36 N.Y.2d 230). Moreover, County Court followed up its immediate curative instruction with a jury charge specifically addressing the objectionable comments thereby further ameliorating any possible prejudicial impact of the statements (see, People v Miller, 108 A.D.2d 1053, 1057, lv denied 65 N.Y.2d 697; see also, People v Young, 48 N.Y.2d 995, 996; People v Banks, 130 A.D.2d 498, lv denied 70 N.Y.2d 709).
Nor do we find merit in defendant's remaining argument that the proof was insufficient to sustain the verdict. He contends that no witness identified him as the individual who drove the vehicle. Initially, we note that defendant was the owner of the vehicle identified. At the scene of the first accident, the vehicle which was allegedly involved in that accident was observed being erratically driven by a male driver without other occupants. The gas station attendant observed defendant to have been the sole occupant of the vehicle identified as being involved in the accident and heard him complain that he did not know how he got the flat tire. Defendant possessed the requisite key to the identified vehicle and commenced changing the tire. When approached by the police, he responded to their inquiries with sarcastic counter-questions which implied that he had driven the car to the gas station. This evidence meets the standard for testing the sufficiency of a conviction based solely on circumstantial evidence. The facts exclude to a moral certainty any possible hypothesis of innocence (see, People v Leger, 157 A.D.2d 926, 927, lv denied 75 N.Y.2d 921; People v Saplin, 122 A.D.2d 498, lv denied 68 N.Y.2d 817; see also, People v Kennedy, 47 N.Y.2d 196, 202, 204) and the conclusion of guilt flows naturally from the proven facts (see, People v Saplin, supra).
Judgment affirmed. Mahoney, P.J., Casey, Weiss, Yesawich, Jr., and Harvey, JJ., concur.