Opinion
2013-11-27
The PEOPLE, etc., respondent, v. Shaun HOKE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered May 20, 2011, convicting him of assault in the first degree, assault in the second degree, robbery in the first degree (three counts), and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's challenge for cause to a prospective juror who divulged during voir dire that her son had recently been arrested and was being prosecuted by the Kings County District Attorney's office. The prospective juror's responses to questioning during voir dire, construed as a whole, failed to demonstrate an absolute belief that her son's arrest and prosecution would not have an influence on her verdict ( seeCPL 270.20[1][b]; People v. Culhane, 33 N.Y.2d 90, 107, 350 N.Y.S.2d 381, 305 N.E.2d 469; People v. Goodwin, 64 A.D.3d 790, 791–792, 882 N.Y.S.2d 707).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). 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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that certain comments made by the prosecutor during summation were improper and deprived him of a fair trial is unpreserved for appellate review ( seeCPL 470.05[2] ), because he raised no objection to certain challengedcomments, made general objections to other challenged comments without alerting the trial court to his specific claims now raised on appeal and, when his objections to the remaining challenged comments were sustained, he failed to seek any further curative relief or move for a mistrial ( see People v. Brooks, 89 A.D.3d 746, 747, 931 N.Y.S.2d 894; People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194). In any event, certain challenged comments constituted fair comment on the evidence ( see People v. Miller, 239 A.D.2d 787, 789–790, 658 N.Y.S.2d 482, affd. 91 N.Y.2d 372, 670 N.Y.S.2d 978, 694 N.E.2d 61). The remaining challenged comments, while they would have been better left unsaid, did not deprive the defendant of a fair trial ( see People v. Gonzalez, 83 A.D.3d 1093, 1094, 921 N.Y.S.2d 545).
The defendant's remaining contention is unpreserved for appellate review ( see People v. Walker, 70 A.D.3d 870, 871, 894 N.Y.S.2d 156) and, in any event, without merit ( see People v. Marthone, 281 A.D.2d 562, 721 N.Y.S.2d 828).