Opinion
2019–08860 Ind. No. 546/15
03-23-2022
The PEOPLE, etc., respondent, v. Kenneth D. TURNER, Jr., appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon T. Brodt, and Josette Simmons of counsel), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon T. Brodt, and Josette Simmons of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered July 22, 2019, convicting him of robbery in the first degree, robbery in the second degree, and burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 establish the defendant's guilt beyond a reasonable doubt based on an acting-in-concert theory (see Penal Law §§ 20.00, 160.15[4] ; 160.10[1]; 140.25[1][d]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 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 he was deprived of a fair trial by certain of the prosecutor's summation remarks is without merit. Most of the challenged portions of the prosecutor's summation were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to defense counsel's summation, or within the bounds of permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Hernandez, 171 A.D.3d 791, 95 N.Y.S.3d 828, 837). To the extent that some of the challenged remarks were improper, any prejudice to the defendant was ameliorated by the Supreme Court's curative instructions to the jury (see People v. Baker, 14 N.Y.3d 266, 273–274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. McManus, 150 A.D.3d 762, 53 N.Y.S.3d 368 ), which the jury is presumed to have followed (see People v. Guzman, 76 N.Y.2d 1, 7, 556 N.Y.S.2d 7, 555 N.E.2d 259 ).
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.