Summary
finding that "defendant's argument that the court erred in admitting a recording of two 911 emergency telephone calls placed by the complainant regarding the subject incident [was] unpreserved for appellate review, as the defendant failed to object to the admission of the recording at trial"
Summary of this case from Garner v. LeeOpinion
2014-05-28
The PEOPLE, etc., respondent, v. Dayquan OLIPHANT, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered March 10, 2011, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of assault in the second degree and criminal possession of a weapon in the fourth degree. The defendant's argument that the prosecution failed to proffer legally sufficient evidence to support those convictions is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, 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 support the defendant's conviction of assault in the second degree and criminal possession of a weapon in the fourth degree beyond a reasonable doubt ( seePenal Law §§ 120.05[2]; 265.01[2]; People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039;People v. Carter, 53 N.Y.2d 113, 440 N.Y.S.2d 607, 423 N.E.2d 30;People v. Warren, 98 A.D.3d 634, 949 N.Y.S.2d 496;People v. Barresi, 80 A.D.3d 709, 710, 914 N.Y.S.2d 684;People v. Williams, 79 A.D.3d 537, 538, 914 N.Y.S.2d 92).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see 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 fact-finder'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 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 argument that the court erred in admitting a recording of two 911 emergency telephone calls placed by the complainant regarding the subject incident is unpreserved for appellate review, as the defendant failed to object to the admission of the recording at trial ( seeCPL 470.05[2]; People v. Reynolds, 83 A.D.3d 1098, 921 N.Y.S.2d 549;People v. Stevenson, 52 A.D.3d 746, 858 N.Y.S.2d 908). In any event, contrary to the defendant's contention, the Supreme Court properly admitted the recording into evidence under the excited utterance exception to the hearsay rule ( 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, 305–306, 772 N.Y.S.2d 238, 804 N.E.2d 402;People v. Whitlock, 95 A.D.3d 909, 910, 943 N.Y.S.2d 227;People v. Fields, 89 A.D.3d 861, 932 N.Y.S.2d 185).
The defendant additionally argues that the prosecutor committed prosecutorial misconduct in his summation, and therefore deprived the defendant of a fair trial. The defendant's argument is not preserved for appellate review, as the defendant either did not object to the comments, or did not object to the court's rulings or request additional curative instructions ( seeCPL 470.05[2]; People v. Comer, 73 N.Y.2d 955, 540 N.Y.S.2d 997, 538 N.E.2d 349;People v. Tardbania, 72 N.Y.2d 852, 532 N.Y.S.2d 354, 528 N.E.2d 507;People v. Wright, 62 A.D.3d 916, 917, 878 N.Y.S.2d 788). In any event, the defendant's claim is without merit. A prosecutor has “broad latitude during summation, particularly when responding to the defense counsel's summation” ( People v. Cariola, 276 A.D.2d 800, 800, 715 N.Y.S.2d 162, citing People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;see People v. Rhodes, 11 A.D.3d 487, 488, 782 N.Y.S.2d 788). In this case, most of the prosecutor's statements were either fair comment on the evidence presented, fair response to the defendant's summation, or permissible rhetorical comment ( see People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614;People v. Pearson, 29 A.D.3d 711, 813 N.Y.S.2d 680;People v. Collins, 12 A.D.3d 33, 784 N.Y.S.2d 489;cf. People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Smith, 28 A.D.3d 688, 689, 812 N.Y.S.2d 370;People v. Lyking, 147 A.D.2d 504, 504–505, 537 N.Y.S.2d 314). Any error as to the remaining statements did not deprive the defendant of a fair trial, and any other error in this regard was either alleviated when the court issued curative instructions ( see People v. Baker, 14 N.Y.3d 266, 273–274, 899 N.Y.S.2d 733, 926 N.E.2d 240;People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 366 N.E.2d 279;People v. Ashwal, 39 N.Y.2d at 111, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Daley, 50 A.D.3d 1051, 855 N.Y.S.2d 678;People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 399, 400), or was harmless, as the evidence of the defendant's guilt was overwhelming and there is no significant probability that the error contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant's contention that he received ineffective assistance of counsel is without merit ( see People v. Snyder, 100 A.D.3d 1367, 1369, 953 N.Y.S.2d 430;People v. Taylor, 1 N.Y.3d 174, 175–176, 770 N.Y.S.2d 711, 802 N.E.2d 1109).