Opinion
2014-04-23
The PEOPLE, etc., respondent, v. Wayne MARTIN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Allison Ageyeva of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered September 8, 2010, convicting him of murder in the first degree and assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant's contention, raised in his pro se supplemental brief, that the lineup identification procedure was unduly suggestive, is unpreserved for appellate review, since at the Wade hearing ( see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), he failed to raise the specific grounds upon which he now challenges the procedure ( seeCPL 470.05[2]; People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2d 182;People v. Lago, 60 A.D.3d 784, 784–785, 875 N.Y.S.2d 178). In any event, the People established in the first instance that the lineup procedure was not improper, and the defendant failed to establish that the procedure was unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).
The defendant's contention, raised in his main brief and in Points I through III of his pro se supplemental brief, that the evidence was legally insufficient to support his convictions of murder in the first degree and assault in the first degree, is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gonzalez, 94 A.D.3d 775, 776, 941 N.Y.S.2d 507;People v. Reid, 82 A.D.3d 1268, 1268, 919 N.Y.S.2d 862). 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. Moreover, 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, 348–349, 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 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 comments made by the prosecutor during his opening statement and summation were improper and denied him a fair trial is largely unpreserved for appellate review, since the defendant either failed to object to the remarks he now challenges, made only a general objection, objected on grounds other than those currently raised, or failed to request additional instructions when the trial court gave curative instructions ( see CPL 470.05[2]; People v. Santos, 105 A.D.3d 1064, 1065, 963 N.Y.S.2d 380;People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121). In any event, the challenged portions of the prosecutor's opening statement were either not improper or did not deprive the defendant of a fair trial ( see People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699,cert. denied sub nom. Kurtz v. New York, 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301;People v. Roscher, 114 A.D.3d 812, 980 N.Y.S.2d 146;People v. Rogha, 213 A.D.2d 266, 266, 624 N.Y.S.2d 125). Additionally, most of the challenged summation remarks were fair comment upon the evidence, were responsive to the defense's summation, were within the bounds of rhetorical comment, or do not otherwise warrant reversal ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564). To the extent that any prejudicial effect may have resulted from certain remarks relating to the lineup identification, it was ameliorated by the trial court's instructions ( see People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206;People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244).
Contrary to the defendant's contention raised in his pro se supplemental brief, the Supreme Court did not err in sentencing him to consecutive terms of imprisonment for murder in the first degree and for assault in the first degree, since those offenses involved separate victims and separate acts ( see People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29;People v. Holmes, 92 A.D.3d 957, 957, 938 N.Y.S.2d 902).
The defendant was not deprived of the effective assistance of counsel ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).
The defendant's remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review and, in any event, without merit. DICKERSON, J.P., HALL, ROMAN and COHEN, JJ., concur.