Opinion
2014-06-25
The PEOPLE, etc., respondent, v. Akime JEAN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered April 17, 2012, convicting him of criminal possession of stolen property in the fifth degree, petit larceny, and criminal trespass in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions that the People improperly used his pretrial silence to impeach his credibility at trial and made improper summation comments regarding his pretrial silence are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616;People v. Bellman, 112 A.D.3d 732, 976 N.Y.S.2d 401;People v. Williams, 107 A.D.3d 746, 966 N.Y.S.2d 225;People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244).
In any event, the defendant's contentions are without merit. Prior to trial, the defendant spoke to police officers and narrated the essential facts of his involvement in the crime. Thus, the defendant could be cross-examined about his failure to inform the police at that time of exculpatory circumstances to which he testified at trial ( see People v. Savage, 50 N.Y.2d 673, 676, 431 N.Y.S.2d 382, 409 N.E.2d 858;People v. Fox, 60 A.D.3d 966, 876 N.Y.S.2d 98;People v. Prashad, 46 A.D.3d 844, 848 N.Y.S.2d 279;People v. Davis, 256 A.D.2d 173, 683 N.Y.S.2d 496;People v. Spinelli, 214 A.D.2d 135, 631 N.Y.S.2d 863).
The summation comments the defendant now challenges were fair comment on the evidence, responsive to arguments and theories raised by the defense, or otherwise 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 also People v. Williams, 107 A.D.3d 746, 966 N.Y.S.2d 225;People v. Ravenell, 307 A.D.2d 977, 762 N.Y.S.2d 919).
The defendant's attorney provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).