Opinion
959 KA 19-00535
11-19-2021
The PEOPLE of the State of New York, Respondent, v. Lance WILLIAMS, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree ( Penal Law § 120.05 [3] ). We affirm.
Contrary to defendant's contention, County Court did not err in refusing to preclude a statement he made immediately following the underlying incident. Defendant made the statement in a loud voice as he was being escorted by correction officers out of the prison's gymnasium during an event attended by the family members of inmates, and it is unclear to whom he was communicating. The statement was not made in response to any questioning by the correction officers. Although it is undisputed that the People failed to provide defendant with a timely CPL 710.30 notice with respect to the challenged statement, no such notice was required here because defendant made the statement to, inter alia, "private parties who were not police agents" ( People v. Mirenda , 23 N.Y.2d 439, 448, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] ; see People v. Albert , 171 A.D.3d 1519, 1520, 99 N.Y.S.3d 817 [4th Dept. 2019] ; People v. Bryant , 144 A.D.3d 1523, 1524, 41 N.Y.S.3d 339 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ). Further, defendant's statement was not made subject to CPL 710.30 merely because the statement was "overheard by a [correction] officer" ( People v. Pittman , 160 A.D.3d 1130, 1130, 74 N.Y.S.3d 659 [3d Dept. 2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ; see People v. Umana , 76 A.D.3d 1111, 1112, 908 N.Y.S.2d 244 [2d Dept. 2010], lv denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 [2010] ).
Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct during summation. To the extent that defendant challenges the prosecutor's characterization of his trial testimony as "wild," the contention is not preserved for our review because defendant failed to object to that comment (see People v. Kerce , 140 A.D.3d 1659, 1660, 32 N.Y.S.3d 780 [4th Dept. 2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ), and we decline to exercise our power to review that part of the contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). With respect to defendant's challenge to the prosecutor's mischaracterization of a witness's testimony, the court "properly sustained defense counsel's objection to the prosecutor's statement and gave a curative instruction, which the jury is presumed to have followed," thereby alleviating any prejudice caused by the prosecutor's mischaracterization ( People v. Flowers , 151 A.D.3d 1843, 1844, 57 N.Y.S.3d 598 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ). We conclude that the remainder of the comments challenged by defendant "were within the broad bounds of rhetorical comment permissible during summations ..., and they were either a fair response to defense counsel's summation or fair comment on the evidence" ( People v. Ali , 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277 [4th Dept. 2011], lv denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128 [2012] [internal quotation marks omitted]; see People v. Bailey , 181 A.D.3d 1172, 1175, 118 N.Y.S.3d 351 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 21, 149 N.E.3d 859 [2020] ). Even assuming, arguendo, that any of the prosecutor's comments exceeded those bounds, we conclude that they "were not so egregious as to deprive defendant of a fair trial" ( Ali , 89 A.D.3d at 1414, 932 N.Y.S.2d 277 [internal quotation marks omitted]; see People v. Blackshell , 178 A.D.3d 1355, 1356, 117 N.Y.S.3d 393 [4th Dept. 2019], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ; Kerce , 140 A.D.3d at 1660, 32 N.Y.S.3d 780 ).