Opinion
2014-05-28
The PEOPLE, etc., respondent, v. John KATEHIS, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered December 13, 2011, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case ( seeCPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Chance, 105 A.D.3d 758, 759, 962 N.Y.S.2d 620). 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. Additionally, 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 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 of the prosecutor's summation comments deprived him of a fair trial is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Kinard, 96 A.D.3d 976, 977, 946 N.Y.S.2d 504). In any event, the now-challenged remarks either constituted fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668), were responsive to arguments and theories presented in defense counsel's summation ( see People v. Gross, 88 A.D.3d 905, 906, 931 N.Y.S.2d 129), were permissible rhetorical comment ( see People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668), or did not deprive the defendant of a fair trial ( seeCPL 470.15[6][a] ).
The defendant consented to the admission into evidence of certain emails and photographs, so he may not complain now that their admission was error ( see People v. Green, 92 A.D.3d 953, 954, 939 N.Y.S.2d 520;People v. Stroman, 27 A.D.3d 589, 590, 813 N.Y.S.2d 105;People v. Reuben, 215 A.D.2d 508, 509, 626 N.Y.S.2d 251). Moreover, defense counsel's consent to the admission of this evidence, by itself, did not deprive the defendant of his right to effective assistance of counsel ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;People v. McFarlane, 106 A.D.3d 836, 837, 964 N.Y.S.2d 626;see also Strickland v. Washington, 466 U.S. 668, 695–696, 104 S.Ct. 2052, 80 L.Ed.2d 674;cf. Hinton v. Alabama, ––– U.S. ––––, ––––, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1;People v. Turner, 5 N.Y.3d 476, 478, 806 N.Y.S.2d 154, 840 N.E.2d 123).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).