Opinion
2016-01093. Ind. No. 1218/14.
08-30-2017
The PEOPLE, etc., respondent, v. Jose LOPEZ–MIRALLES, appellant.
Judah Maltz, Kew Gardens, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and Cristin N. Connell of counsel), for respondent.
Judah Maltz, Kew Gardens, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and Cristin N. Connell of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Corrigan, J.), rendered January 22, 2016, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 of assault in the first degree beyond a reasonable doubt (see People v. Daniels, 134 A.D.3d 525, 21 N.Y.S.3d 75 ; People v. Guillen, 65 A.D.3d 977, 886 N.Y.S.2d 373 ; People v. Thompson, 224 A.D.2d 646, 639 N.Y.S.2d 52 ).
Since the defendant opposed the People's request to charge the jury with assault in the second degree ( Penal Law § 120.05[2] ) as a lesser-included offense of assault in the first degree ( Penal Law § 120.10[1] ), the defendant waived his present contention that the Supreme Court erred in failing to submit that charge to the jury (see People v. Terrell, 78 A.D.3d 865, 866, 910 N.Y.S.2d 368 ).
Contrary to the defendant's contention, the testimony of a police officer regarding a conversation with an unidentified individual did not violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (see U.S. Const. 6th Amend; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ). The testimony at issue "was properly admitted for the relevant nonhearsay purpose of establishing the reasons behind the [officer's] actions, and to complete the narrative of events leading to the defendant's arrest" ( People v. Prince, 128 A.D.3d 987, 987, 10 N.Y.S.3d 146 [internal quotations marks omitted]; see People v. Speaks, 124 A.D.3d 689, 691, 1 N.Y.S.3d 257, affd. 28 N.Y.3d 990, 42 N.Y.S.3d 644, 65 N.E.3d 673 ; People v. Grant, 122 A.D.3d 643, 644, 994 N.Y.S.2d 428 ; People v. Ragsdale, 68 A.D.3d 897, 897–898, 889 N.Y.S.2d 681 ). Further, the Supreme Court specifically instructed the jury on the limited purpose of this testimony and that the testimony was not admitted for its truth (see People v. Prince, 128 A.D.3d at 987, 10 N.Y.S.3d 146 ; People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222 ).
The defendant's contention that he was deprived of a fair trial by statements made by the prosecutor during her opening statement and on summation is unpreserved for appellate review because defense counsel did not object to the challenged remarks (see CPL 470.05[2] ; People v. Bell, 136 A.D.3d 838, 839, 26 N.Y.S.3d 88 ). In any event, the defendant's contention is without merit, as the challenged remarks were either fair comment on the evidence and reasonable inferences to be drawn therefrom, or fair response to arguments made by defense counsel in summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Coleman, 148 A.D.3d 717, 718, 48 N.Y.S.3d 478 ).