Opinion
2012-00172
12-31-2014
The PEOPLE, etc., respondent, v. Leonard WILLIAMS, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jill Oziemblewski, and Daniel Berman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jill Oziemblewski, and Daniel Berman of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered December 13, 2011, convicting him of burglary in the first degree, criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that a slide show the prosecutor presented to the jury during summation deprived him of a fair trial. To the extent that the defendant contends that the prosecution mischaracterized the trial evidence with slides indicating that a truck belonged to one of the People's witnesses and that this witness saw the defendant on the street just prior to the assault, the defendant's challenges are preserved for appellate review. The defendant's remaining challenges regarding the slide show are unpreserved for appellate review. In any event, the slide show was not improper (see generally People v. Santiago, 22 N.Y.3d 740, 746–747, 750–751, 986 N.Y.S.2d 375, 9 N.E.3d 870 ). To the extent that there was any prejudice to the defendant, it was mitigated by the court's curative instruction to the jury (see People v. Baker, 14 N.Y.3d 266, 273–274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. Oliphant, 117 A.D.3d 1085, 1087, 986 N.Y.S.2d 600 ; People v. Townsend, 100 A.D.3d 1029, 1030, 954 N.Y.S.2d 221 ), which the jury is presumed to have followed (see People v. Guzman, 76 N.Y.2d 1, 7, 556 N.Y.S.2d 7, 555 N.E.2d 259 ; People v. Tohom, 109 A.D.3d 253, 268, 969 N.Y.S.2d 123 ; People v. Townsend, 100 A.D.3d at 1030, 954 N.Y.S.2d 221 ).
With the exception of a comment related to consciousness of guilt, the defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, since he either failed to object to the remarks at issue, made only a general objection, or failed to request further curative relief when his objections were sustained, and he failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05 [2 ]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Martin, 116 A.D.3d 981, 982, 983 N.Y.S.2d 813 ; People v. Stewart, 89 A.D.3d 1044, 1045, 933 N.Y.S.2d 112 ; People v. Paul, 82 A.D.3d 1267, 1267–1268, 919 N.Y.S.2d 393 ). In any event, the challenged portions of the prosecutor's summation were within the bounds of permissible comment, a fair response to the defendant's attack on the credibility of the People's witnesses and the defense suggestion that the complainant and his brother framed the defendant, a fair comment on the evidence and the reasonable inferences to be drawn therefrom, or permissible rhetorical comment (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Ariza, 77 A.D.3d 844, 846, 909 N.Y.S.2d 148 ; People v. Barnes, 33 A.D.3d 811, 812, 826 N.Y.S.2d 283 ). To the extent that any prejudice may have resulted from certain remarks, it was ameliorated by the trial court's curative instructions to the jury (see People v. Baker, 14 N.Y.3d at 273–274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. Oliphant, 117 A.D.3d at 1087, 986 N.Y.S.2d 600 ; People v. Townsend, 100 A.D.3d at 1030, 1031, 954 N.Y.S.2d 221 ), which the jury is presumed to have followed (see People v. Guzman, 76 N.Y.2d at 7, 556 N.Y.S.2d 7, 555 N.E.2d 259 ; People v. Tohom, 109 A.D.3d at 268, 969 N.Y.S.2d 123 ; People v. Townsend, 100 A.D.3d at 1030, 954 N.Y.S.2d 221 ). Moreover, any improper comments were isolated and not so egregious as to have deprived the defendant of a fair trial (see People v. Romero, 7 N.Y.3d at 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; cf. People v. Spann, 82 A.D.3d 1013, 1015–1016, 918 N.Y.S.2d 588 ).
Defense counsel's failure to object to the improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel (see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Brooks, 89 A.D.3d 746, 931 N.Y.S.2d 894 ). The record reveals that defense counsel provided meaningful representation (see People v. Taylor, 1 N.Y.3d at 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).