PEOPLE v. DAVENPORT (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[3] ) and burglary in the first degree (§ 140.30[3] ).   As defendant correctly concedes, he failed to preserve for our review his contention with respect to Supreme Court's jury charge (see People v. Ponder, 19 A.D.3d 1041, 1042-1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's further contention, the court provided the requisite “meaningful [response]” to the jury's request for information (People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93), and defendant thus was not denied a fair trial by the manner in which the court responded to the jury's inquiry.   We reject defendant's contention that the court erred in permitting the prosecutor to elicit testimony concerning a previously suppressed identification procedure.   Defendant opened the door to the admission of that testimony by cross-examining the victim concerning her observations of defendant at the time of his arrest.  “Had the court failed to admit the [testimony concerning the identification procedure], the testimony elicited by defendant [in cross-examining the victim] would have created the misleading impression that the victim had been unable to identify defendant prior to trial” (People v. Mahone, 206 A.D.2d 263, 264, 614 N.Y.S.2d 409, lv. denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334;  see People v. Massie, 2 N.Y.3d 179, 777 N.Y.S.2d 794, 809 N.E.2d 1102).

Defendant further contends that he was denied a fair trial based on prosecutorial misconduct on summation.   Contrary to the contention of defendant, the court properly overruled defendant's two objections to the prosecutor's summation, and defendant's remaining contentions with respect to alleged prosecutorial misconduct on summation are not preserved for our review (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356;  People v. Jones, 31 A.D.3d 1193, 817 N.Y.S.2d 849, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144).   In any event, the prosecutor's allegedly improper comments were fair response to defense counsel's summation and did not deprive defendant of a fair trial (see Smith, 32 A.D.3d at 1292, 821 N.Y.S.2d 356;  see generally People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).   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), and the sentence is not unduly harsh or severe.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: