Opinion
2012-10244
12-03-2014
The PEOPLE, etc., respondent, v. Domincio FUHRTZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Denson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Anastasia Spanakos of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Denson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Anastasia Spanakos of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered November 7, 2012, convicting him of rape in the first degree and criminal sexual act in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the 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. Gumbs, 58 A.D.3d 641, 871 N.Y.S.2d 347 ; People v. Crawford, 38 A.D.3d 680, 832 N.Y.S.2d 254 ). In any event, 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 ), we find that the evidence was legally sufficient to establish the defendant's guilt of rape in the first degree and criminal sexual act in the first degree beyond a reasonable doubt (see Penal Law §§ 130.35 [1 ]; 130.50[1] ).
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, 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 as to those crimes 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 contention that various questions posed by the prosecutor during cross-examination and certain remarks made by the prosecutor during his opening statement and summation deprived him of due process is largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Edwards, 118 A.D.3d 909, 987 N.Y.S.2d 452 ). In any event, the challenged cross-examination questions were not improper and the majority of the challenged remarks made during summation were responsive to arguments made by the defense or remained within the “broad bounds of rhetorical comment permissible in closing argument” (People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; see People v. Thompson, 118 A.D.3d 822, 987 N.Y.S.2d 189 ; People v. Burgos, 97 A.D.3d 689, 947 N.Y.S.2d 897 ). Although the challenged remarks made during the opening statement and some of the challenged remarks made during summation were improper, they were either stricken by the Supreme Court, thereby limiting any resulting prejudice (see generally People v. Guay, 72 A.D.3d 1201, 898 N.Y.S.2d 353, affd. 18 N.Y.3d 16, 935 N.Y.S.2d 567, 959 N.E.2d 504 ), or were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Ward, 106 A.D.3d 842, 964 N.Y.S.2d 642 ; People v. Persaud, 98 A.D.3d 527, 949 N.Y.S.2d 431 ).
The defendant's contention that his trial counsel's failure to preserve certain claims for appellate review constituted ineffective assistance of counsel is without merit (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Howard, 120 A.D.3d 1259, 992 N.Y.S.2d 144 ).