Opinion
2017-07955 Ind. No. 896/16
05-20-2020
The PEOPLE, etc., Respondent, v. Deborah BURNS, Appellant.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the judgment is modified, on the law, by providing that all of the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant's contention that her convictions are not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Pearsall, 171 A.D.3d 1096, 1096, 98 N.Y.S.3d 307 ). 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 (see People v. Kanios, 53 A.D.3d 555, 555, 861 N.Y.S.2d 139 ; People v. Wolz, 300 A.D.2d 606, 606, 752 N.Y.S.2d 382 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 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 ; 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, 645–646, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant waived any objection to the admission into evidence of a family photograph of the deceased victims and the report generated from data extracted from the "black box" of her vehicle by consenting to their admission at trial (see People v. Williams, 168 A.D.3d 770, 770, 89 N.Y.S.3d 647 ; People v. Katehis, 117 A.D.3d 1080, 1081, 986 N.Y.S.2d 570 ).
The defendant's contention that she received ineffective assistance of counsel is without merit as the record shows that defense counsel provided the defendant with meaningful representation (see People v. Orlando, 61 A.D.3d 1001, 1002, 878 N.Y.S.2d 185 ; see also People v. Katehis, 117 A.D.3d at 1081, 986 N.Y.S.2d 570 ).
The defendant's contention that the prosecutor committed misconduct by questioning the witnesses about the background of the victims' family is unpreserved for appellate review because the defendant did not object to these remarks or questions (see People v. Davis, 132 A.D.3d 891, 892, 18 N.Y.S.3d 423 ). In any event, the testimony complained of did not deprive the defendant of a fair trial (see People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123 ).
The defendant's contention that she was deprived of her right to a fair trial due to improper remarks made by the prosecutor during his summation is unpreserved for appellate review, as the defense counsel did not object to some of the challenged remarks and made only general objections to the others (see CPL 470.05[2] ; People v. Mais, 133 A.D.3d 687, 688–689, 20 N.Y.S.3d 129 ). In any event, the majority of the prosecutor's comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, or fair response to the arguments made by defense counsel in summation (see People v. JeanCharles, 173 A.D.3d 902, 902, 100 N.Y.S.3d 533 ; see also People v. Gurdon, 153 A.D.3d 1430, 1431, 61 N.Y.S.3d 333 ). Although the prosecutor's comments about the effect the deceased victims' deaths had on their family were improper, as the comments were designed to evoke the jury's sympathy, any prejudice was alleviated by the Supreme Court's instruction, during its final charge, that the jury may not consider sympathy (see People v. Esguerra, 178 A.D.3d 722, 725, 113 N.Y.S.3d 256 ; People v. Melendez, 11 A.D.3d 983, 983, 782 N.Y.S.2d 893 ), and did not deprive the defendant of a fair trial (see People v. Cherry, 163 A.D.3d at 707, 81 N.Y.S.3d 123 ).
However, as the People concede, the Supreme Court should have imposed concurrent sentences on the convictions of assault in the second degree and the convictions of manslaughter in the second degree (see People v. Laureano, 87 N.Y.2d 640, 645, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). The offenses of manslaughter in the second degree and assault in the second degree arose out of the same operative facts—the defendant's act of recklessly driving her car into the other vehicle. Accordingly, we modify the judgment to make the sentences concurrent to each other (see Penal Law § 70.25[2] ; People v. Brahney, 29 N.Y.3d 10, 14, 51 N.Y.S.3d 9, 73 N.E.3d 349 ; People v. Michel, 144 A.D.3d 948, 949, 41 N.Y.S.3d 112 ).
DILLON, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur.