Opinion
2016–09194 Ind. No. 2266/14
10-07-2020
The PEOPLE, etc., respondent, v. Kevin PERRY, appellant.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered July 26, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his Sixth Amendment right to confrontation under Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 was violated by the admission into evidence of statements made by a nontestifying codefendant is unpreserved for appellate review (see CPL 470.05[2] ; People v. Caldwell, 150 A.D.3d 1021, 1022, 55 N.Y.S.3d 311 ; People v. Jenkins, 93 A.D.3d 861, 940 N.Y.S.2d 874 ). In any event, the contention is without merit. Bruton does not apply, and no violation of the Confrontation Clause exists, when the challenged statements are not incriminating on their face, but only become so when linked with other evidence introduced at trial (see People v. Johnson, 27 N.Y.3d 60, 29 N.Y.S.3d 851, 49 N.E.3d 1143 ; People v. Caldwell, 150 A.D.3d at 1022, 55 N.Y.S.3d 311 ). Here, the challenged statements did not directly implicate the defendant (see People v. Gilocompo, 125 A.D.3d 1000, 4 N.Y.S.3d 288 ) and, hence, were not "facially incriminating" statements ( Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 ).
The defendant's contention that the prosecutor improperly vouched for the credibility of two witnesses during summation is unpreserved for appellate review, since the defendant did not object to the comments or request further curative instructions, or move for a mistrial after the Supreme Court sustained an objection and issued a curative instruction (see CPL 470.05[2] ; People v. Pocesta, 71 A.D.3d 920, 920, 895 N.Y.S.2d 871 ; People v. Mitchell, 68 A.D.3d 784, 890 N.Y.S.2d 585 ). In any event, the challenged remarks were either fair comment on the evidence adduced at trial or responsive to defense counsel's summation (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. McCoy, 89 A.D.3d 1110, 1110, 933 N.Y.S.2d 583 ; People v. Carey, 67 A.D.3d 925, 925, 888 N.Y.S.2d 615 ).
The defendant's contention that the Supreme Court's procedure for handling a jury note that requested certain trial exhibits violated the procedure set forth by the Court of Appeals in People v. O'Rama , 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see People v. Ramirez, 15 N.Y.3d 824, 909 N.Y.S.2d 1, 935 N.E.2d 791 ). In any event, the contention is without merit (see People v. Jones, 173 A.D.3d 1062, 1067, 102 N.Y.S.3d 265 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, COHEN and HINDS–RADIX, JJ., concur.