Opinion
2015-05-06
The PEOPLE, etc., respondent, v. Daniel J. PELOSI, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa R. Marlow Wolland of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey and Thomas Costello of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa R. Marlow Wolland of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey and Thomas Costello of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered January 25, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 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 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 allegedly improper conduct by the prosecutor during her cross-examination of him and throughout her summation had the cumulative effect of depriving him of his right to a fair trial is largely unpreserved for appellate review ( seeCPL 470.05[2]; People v. Osorio, 49 A.D.3d 562, 563–564, 855 N.Y.S.2d 163). In any event, most of the challenged conduct was not improper and, under the circumstances of this case, the cumulative effect of any improper conduct did not deprive the defendant of a fair trial ( see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Outler, 118 A.D.2d 819, 820, 500 N.Y.S.2d 175).
There is no merit to the defendant's contention that the Supreme Court should have dismissed the indictment on the ground that the grand jury proceeding was defective within the meaning of CPL 210.35(5) ( see People v. Walton, 70 A.D.3d 871, 873, 895 N.Y.S.2d 175; People v. Seymour, 255 A.D.2d 866, 867–868, 683 N.Y.S.2d 673). The defendant's contention that the Supreme Court should have conducted a Frye hearing ( see Frye v. United States, 293 F. 1013 [D.C.Cir.] ) is unpreserved for appellate review ( see People v. Angelo, 88 N.Y.2d 217, 223, 644 N.Y.S.2d 460, 666 N.E.2d 1333; People v. Dashosh, 59 A.D.3d 731, 732, 873 N.Y.S.2d 730) and, in any event, without merit ( see People v. Oddone, 22 N.Y.3d 369, 375–377, 980 N.Y.S.2d 912).