Opinion
2011-12-27
The PEOPLE, etc., respondent, v. Melvin COLLINS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered March 8, 2010, convicting him of robbery in the second degree (two counts), attempted robbery in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), unauthorized use of a vehicle in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly admitted a recording of a telephone call made by the defendant while he was incarcerated ( see People v. Ely, 68 N.Y.2d 520, 527–528, 510 N.Y.S.2d 532, 503 N.E.2d 88; People v. McGee, 49 N.Y.2d 48, 59–60, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied sub nom. Waters v. New York, 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797). A sufficient foundation was established through the testimony of a senior program specialist for the Department of Corrections, who testified, inter alia, that he was familiar with the recording system at the prison, that the prison routinely recorded the inmates' telephone calls, and that the recordings were housed in a computer system and identified by an inmate's unique book and case number ( see People v. Cratsley, 86 N.Y.2d 81, 89–91, 629 N.Y.S.2d 992, 653 N.E.2d 1162; People v. Kennedy, 68 N.Y.2d 569, 575–578, 510 N.Y.S.2d 853, 503 N.E.2d 501; cf. People v. Manor, 38 A.D.3d 1257, 832 N.Y.S.2d 341).
We reject the defendant's contention that he was deprived of a fair trial by improper comments made during summation by the prosecutor. The challenged remarks were within the bounds of permissible rhetorical comment, fair response to arguments and issues raised by the defense, fair comment on the evidence, or cured by the trial court's charge to the jury ( see People v. Cabrera, 85 A.D.3d 942, 943, 925 N.Y.S.2d 166).
The defendant's contention that the jury charge on consciousness of guilt was deficient is unpreserved for appellate review ( see CPL 470.05 [2]; People v. Mella–Rodriguez, 39 A.D.3d 671, 672, 836 N.Y.S.2d 192), and, in any event, is without merit ( see People v. Knight, 261 A.D.2d 487, 487, 687 N.Y.S.2d 904).