Opinion
2013-05-1
The PEOPLE, etc., respondent, v. Daniel BROWN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine and Erica Horwitz of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Stefani Johnson of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine and Erica Horwitz of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Stefani Johnson of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered November 18, 2009, convicting him of murder in the second 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's contention that he was deprived of a fair trial by various remarks made by the prosecutor during summation is unpreserved for appellate review, since the defendant made only a single general objection to one of the remarksnow alleged to have been improper ( seeCPL 470.05[2]; People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684;People v. Floyd, 97 A.D.3d 837, 948 N.Y.S.2d 683). In any event, the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, were fairly responsive to arguments and issues raised by defense counsel in summation, or constituted fair comment on the evidence ( see 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). Under the circumstances of this case, of this case, defense counsel's failure to object to the challenged remarks did not constitute ineffective assistance of counsel ( see People v. Friel, 53 A.D.3d 667, 668, 862 N.Y.S.2d 105;People v. Rose, 47 A.D.3d 848, 849, 849 N.Y.S.2d 158).
The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient to support his conviction of murder in the second degree is unpreserved for appellate review, since he failed to move for a trial order of dismissal specifically directed at the error ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. McAllister, 98 A.D.3d 527, 948 N.Y.S.2d 913).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 with respect to the conviction of murder in the second degree.
The defendant further contends in his pro se supplemental brief that the verdict was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 remaining contention raised in his pro se supplemental brief is without merit.