Opinion
2003-09277.
July 11, 2006.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 21, 2003, convicting him of murder in the second degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
Before: Crane, J.P, Spolzino, Fisher and Lunn, JJ.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v Gray, 86 NY2d 10). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant's challenge to the prosecutor's comments during summation is unpreserved for appellate review ( see CPL 470.05; People v Williams, 305 AD2d 703). In any event, the defendant was not denied his right to a fair trial by the prosecutor's comments. Although the prosecutor improperly referred to matters outside the "four corners of the evidence" ( People v Ashwal, 39 NY2d 105, 109), any prejudice that may have resulted therefrom was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury ( see People v Williams, 14 AD3d 519; People v Efferson, 300 AD2d 674; People v Burrell, 178 AD2d 422).
The defendant correctly concedes that his challenge to the trial court's jury charge is unpreserved for appellate review ( see CPL 470.05; People v Rivera, 307 AD2d 369, 369-370; People v Brown, 209 AD2d 532). In any event, the court's interested witness charge was proper ( see People v Varughese, 21 AD3d 1126, 1128, lv denied 6 NY3d 782; People v Kallamni, 14 AD3d 316, 316-317; cf. People v Jackson, 74 NY2d 787, 790). Moreover, no circumstantial evidence charge was necessary, as the People adduced both direct and circumstantial evidence of the defendant's guilt ( see People v Daddona, 81 NY2d 990, 992).
The defendant's contention that he was denied a fair trial by negative news reports during the trial regarding a street gang to which he belonged is unpreserved for appellate review ( see CPL 470.05). In any event, "[t]he defendant has failed to show that any juror formed an opinion based on the negative publicity. Absent such a showing, the defendant's argument must fail" ( People v Hardwick, 137 AD2d 714, 718).
The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80).