Opinion
689 KA 17–00297
06-14-2019
The PEOPLE of the State of New York, Respondent, v. Tony VICK, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted kidnapping in the second degree ( Penal Law §§ 110.00, 135.20 ) and assault in the second degree (§ 120.05[2] ). Contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "Although a different result would not have been unreasonable, the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812 [4th Dept. 2004], lv denied 4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92 [2005] ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during opening and closing statements (see People v. Simmons, 133 A.D.3d 1227, 1228, 18 N.Y.S.3d 808 [4th Dept. 2015] ). In any event, we conclude that his contention is without merit. The prosecutor's comments during his opening statement were, while perhaps theatrical, "properly framed in terms of what the [witnesses] would testify to and did not distort the evidence or otherwise prejudice defendant" ( People v. Hinojoso–Soto, 161 A.D.3d 1541, 1546, 77 N.Y.S.3d 248 [4th Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] [internal quotation marks omitted] ). The prosecutor's use of a jigsaw puzzle visual on summation to explain the People's burden of proof and reasonable doubt was not improper (see generally People v. Barnes, 50 N.Y.2d 375, 380–381, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980] ). Most of the prosecutor's remarks on summation were either fair comment on the evidence or fair response to defense counsel's summation (see People v. Walker, 117 A.D.3d 1441, 1441–1442, 986 N.Y.S.2d 284 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014] ). We agree with defendant, however, that it was improper for the prosecutor to remark at the beginning of his summation that he declined to object during defense counsel's summation, not because he agreed with everything that defense counsel said, but because he thought that it was important that the jury "hear everything that [defense counsel] ha[d] to say." That remark implied that, if defense counsel were to object during the prosecutor's summation, then defense counsel would be trying to keep information from the jury, and was an improper attempt to discourage defense counsel from objecting during the prosecutor's summation. We do not condone that type of conduct, but we nevertheless conclude that the improper remark was not so egregious as to deprive defendant of a fair trial (see People v. Pendergraph, 150 A.D.3d 1703, 1703–1704, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] ; People v. Clark, 138 A.D.3d 1449, 1451, 30 N.Y.S.3d 445 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ). In light of our conclusion, we reject defendant's further contention that defense counsel's failure to object to the alleged instances of prosecutorial misconduct constituted ineffective assistance of counsel (see People v. Funk, 166 A.D.3d 1487, 1488–1489, 87 N.Y.S.3d 419 [4th Dept. 2018], lv denied 32 N.Y.3d 1172, 97 N.Y.S.3d 636, 121 N.E.3d 264 [2019] ; People v. Reed, 163 A.D.3d 1446, 1448, 79 N.Y.S.3d 452 [4th Dept. 2018], lv denied 32 N.Y.3d 1067, 89 N.Y.S.3d 122, 113 N.E.3d 956 [2018] ; People v. Smith, 150 A.D.3d 1664, 1667, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ).
Finally, the sentence is not unduly harsh or severe.