Opinion
2015–05219 Ind. No. 2376/12
03-11-2020
The PEOPLE, etc., Respondent, v. Christopher CHUNN, Appellant.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), the evidence was legally sufficient to establish the defendant's guilt of attempted murder in the second degree, attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree (two counts) beyond a reasonable doubt (see People v. Lambert, 272 A.D.2d 413, 413–414, 709 N.Y.S.2d 189 ). 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, 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 viewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Anderson, 130 A.D.3d 1055, 1056, 15 N.Y.S.3d 103 ; People v. Allen, 107 A.D.3d 818, 818–819, 966 N.Y.S.2d 525 ; People v. Lambert, 272 A.D.2d at 413–414, 709 N.Y.S.2d 189 ).
The defendant's contention that the Supreme Court erred in admitting evidence of a prior meeting between the defendant and the complainant is without merit. Contrary to the defendant's contention, this evidence was not Molineux evidence (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ) since it did not concern uncharged crimes or other bad acts (see People v. Brewer, 28 N.Y.3d 271, 276, 44 N.Y.S.3d 339, 66 N.E.3d 1057 ; People v. Myles, 172 A.D.3d 752, 753, 99 N.Y.S.3d 433 ).
The Supreme Court providently exercised its discretion in permitting the People to offer into evidence recordings of telephone calls the defendant made while in pretrial detention at Rikers Island Correctional Facility, as the recordings' probative value as evidence of consciousness of guilt outweighed their prejudicial effect (see People v. Chrisostome, 167 A.D.3d 644, 644, 86 N.Y.S.3d 903 ; People v. Moore, 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 ). The court's ruling also did not violate the defendant's Fourth Amendment right to be free from unreasonable searches and seizures (see People v. Diaz, 33 N.Y.3d 92, 95, 98 N.Y.S.3d 544, 122 N.E.3d 61 ; People v. Boyd, 175 A.D.3d 630, 631, 104 N.Y.S.3d 905 ; People v. Chrisostome, 167 A.D.3d at 644, 86 N.Y.S.3d 903 ).
The defendant's contention that certain remarks made by the prosecutor were improper is, for the most part, unpreserved for appellate review (see CPL 470.05[2] ; People v. Beaupre, 170 A.D.3d 1031, 1033, 96 N.Y.S.3d 276 ). In any event, most of the challenged summation remarks were fair comments on the evidence and reasonable inferences to be drawn therefrom (see People v. Anaka, 154 A.D.3d 870, 872, 63 N.Y.S.3d 74 ). To the extent that the prosecutor's remarks constituted improper burden shifting, the Supreme Court sustained defense counsel's objection, and the curative instructions provided by the court alleviated any prejudice that may have resulted from the remarks (see People v. Morrison, 59 A.D.3d 569, 569, 873 N.Y.S.2d 159 ; People v. Ramsey, 48 A.D.3d 709, 710, 852 N.Y.S.2d 304 ). To the extent that any of the remaining challenged remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Coleman, 148 A.D.3d 717, 718, 48 N.Y.S.3d 478 ; People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ). Furthermore, defense counsel's failure to object to most of those remarks did not constitute ineffective assistance of counsel (see People v. Johnson, 171 A.D.3d 1089, 1090–1091, 98 N.Y.S.3d 598 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.