Opinion
2011-12-20
The PEOPLE of the State of New York, Respondent, v. Nathaniel SYVILLE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered November 19, 2004, as amended January 6, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The forensic evidence, viewed as a whole, tended to corroborate rather than undermine the victim's testimony.
The court properly exercised its discretion when it denied defendant's requests to introduce two alleged prior inconsistent statements made by the victim ( see People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978], cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 [1979]; People v. Jackson, 29 A.D.3d 400, 814 N.Y.S.2d 164 [2006], lv. denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284 [2006] ). The purported inconsistencies were taken out of context and lacked probative value. Since defendant never asserted a constitutional right to introduce either piece of evidence, his present constitutional claim is unpreserved ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits ( see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986]; Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ).
The portion of the prosecutor's summation to which defendant objected on the ground of speculation drew permissible inferences from the evidence in response to defense counsel's summation, and did not deprive defendant of a fair trial. Defendant's remaining claims regarding the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).