Opinion
Ind. No. 3966/10.
12-28-2016
The PEOPLE, etc., respondent, v. Jason DANIELS, appellant.
Seymour W. James, Jr., New York, NY (Bonnie C. Brennan of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Julian Joiris of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Bonnie C. Brennan of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Julian Joiris of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered February 22, 2012, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of robbery in the second degree for forcibly stealing a motor vehicle from the complainant (Penal Law § 160.10[3] ).
The defendant's contention that the prosecutor became an unsworn witness on the issue of venue during his summation is unpreserved for appellate review, as the defendant either failed to object or made only a general objection to the prosecutor's comments (see People v. May, 138 A.D.3d 1024, 30 N.Y.S.3d 262 ; People v. Baez, 137 A.D.3d 805, 27 N.Y.S.3d 161 ). In any event, the challenged remarks did not make the prosecutor an unsworn witness, as he did not support his case by his own or anyone else's veracity or position when he made these remarks (see People v. Moye, 12 N.Y.3d 743, 879 N.Y.S.2d 354, 907 N.E.2d 267 ; People v. Manson, 63 A.D.2d 686, 404 N.Y.S.2d 659 ). Furthermore, the trial court instructed the jury before summations began that what the attorneys were going to say was not evidence, and that the attorneys were not allowed to give their personal opinion (see People v. Michael, 52 Misc.3d 142[A], 2016 N.Y. Slip Op. 51196[U], 2016 WL 4275039 [App.Term, 2d Dept, 9& 10Jud.Dists.] ). The jury is presumed to have followed the court's instructions, thereby alleviating any prejudicial impact of the remarks (see People v. Baker, 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. Michael, 52 Misc.3d 142[A], 2016 N.Y. Slip Op. 51196 [U], 2016 WL 4275039 [App.Term, 2d Dept., 9
& 10
Jud.Dists.] ).
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 factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 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 is unpreserved for appellate review and, in any event, without merit.
AUSTIN, J.P., COHEN, MALTESE and DUFFY, JJ., concur.