Opinion
2016–01788 Ind. No. 1332/11
04-06-2022
The PEOPLE, etc., respondent, v. Crystal JOSEPH, appellant.
Patricia Pazner, New York, NY (Jonathan Schoepp–Wong of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Adarna De Frietas of counsel), for respondent.
Patricia Pazner, New York, NY (Jonathan Schoepp–Wong of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Adarna De Frietas of counsel), for respondent.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John LaTella, J.), rendered January 22, 2016, convicting her of burglary in the first degree and burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of burglary in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted of burglary in the first degree and burglary in the second degree based on her alleged participation in an armed home invasion robbery that occurred in November 2010. Contrary to the People's contention, the defendant's challenge to the legal sufficiency of her conviction of burglary in the first degree is preserved for appellate review (see CPL 470.05[2] ). Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the first degree beyond a reasonable doubt. 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; 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 on that count 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 she was deprived of a fair trial by certain comments made by the prosecutor is largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Wisdom, 164 A.D.3d 928, 931, 82 N.Y.S.3d 97 ; People v. Tomlinson, 67 A.D.3d 826, 887 N.Y.S.2d 862 ). In any event, the prosecutor's remarks were mostly fair comment on the evidence, permissible rhetorical comment, or a fair response to the summation of defense counsel (see People v. Thompson, 181 A.D.3d 833, 835, 118 N.Y.S.3d 430 ). To the extent that some of the prosecutor's comments during summation were improper, any prejudicial effect was ameliorated by the Supreme Court's instructions to the jury (see People v. Chizor, 190 A.D.3d 763, 135 N.Y.S.3d 859 ), and those improper comments were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Thompson, 181 A.D.3d at 835, 118 N.Y.S.3d 430 ; People v. Wilson, 163 A.D.3d 881, 882, 81 N.Y.S.3d 163 ; People v. Perdomo, 154 A.D.3d 886, 886, 64 N.Y.S.3d 47 ).
As the People concede, the defendant's conviction of burglary in the second degree under Penal Law § 140.25(2), as well as the sentence imposed thereon, must be vacated and that count dismissed as a lesser included concurrent count of burglary in the first degree under Penal Law § 140.30(4) (see CPL 300.40[3][b] ; People v. Mahon, 188 A.D.3d 915, 917, 135 N.Y.S.3d 406 ; People v. Ortiz, 170 A.D.3d 892, 893, 93 N.Y.S.3d 870 ).
IANNACCI, J.P., RIVERA, WOOTEN and DOWLING, JJ., concur.