Opinion
02-24-2016
The PEOPLE, etc., respondent, v. Ikamel MAITLAND, appellant.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Marie–Claude P. Wrenn–Myers of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Marie–Claude P. Wrenn–Myers of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Shillingford, J.), rendered June 13, 2013, convicting him of criminal possession of a weapon in the second degree, attempted assault in the second degree, and unlawful possession of marijuana, 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, 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 each crime 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 each 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 ).
Contrary to the defendant's contention, the admission of the contents of a portion of the telephone call to the 911 emergency number made by the complainant was proper under the excited utterance exception to the hearsay rule. The surrounding circumstances, including that the call was made immediately after the complainant was shot at, supported the conclusion "that the remarks were not made under the impetus of studied reflection" (People v. Melendez, 296 A.D.2d 424, 425, 744 N.Y.S.2d 485 ; see People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ; People v. Johnson, 1 N.Y.3d 302, 307–308, 772 N.Y.S.2d 238, 804 N.E.2d 402 ; People v. Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 517 N.E.2d 515 ; People v. Edwards, 47 N.Y.2d 493, 499, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ; People v. Reynolds, 83 A.D.3d 1098, 1099, 921 N.Y.S.2d 549 ).
The defendant's challenges to the prosecutor's remarks during summation are largely unpreserved for appellate review, because the defendant made no objection, made only a general objection, or made objections that were sustained without any further request for curative instructions, and were not the basis of his motion for a mistrial (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. Barton, 110 A.D.3d 1089, 1090, 973 N.Y.S.2d 760 ; People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684, revd. on other grounds sub nom. People v. Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ; People v. Read, 97 A.D.3d 702, 703, 947 N.Y.S.2d 614 ). In any event, those remarks pertained to matters that could be fairly inferred from the evidence, and to the extent that some remarks were improper, they did not "rise to the level of egregious misconduct that would have deprived the defendant of a fair trial" (People v. Mason, 132 A.D.3d 777, 778, 17 N.Y.S.3d 768 ; see People v. Cherry, 127 A.D.3d 879, 880, 5 N.Y.S.3d 527 ; People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756 ). With regard to a reference by the prosecutor to prior incarceration, the objection to which is preserved, the Supreme Court gave a sufficient curative instruction, "and the jury is presumed to have followed it" (People v. Ross, 262 A.D.2d 429, 430, 693 N.Y.S.2d 50 ; see People v. Hardy, 22 A.D.3d 679, 680, 804 N.Y.S.2d 344 ).