PEOPLE v. PRYOR (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1] ).   Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter.   That evidence was relevant in establishing “defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect” (People v. Topolski, 28 A.D.3d 1159, 1160, 813 N.Y.S.2d 595, lv. dismissed 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 889, 853 N.E.2d 260, 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289;  see People v. Wynder, 41 A.D.3d 209, 839 N.Y.S.2d 14, lv. denied 9 N.Y.3d 884, 842 N.Y.S.2d 796, 874 N.E.2d 763;  People v. Jones, 276 A.D.2d 292, 714 N.Y.S.2d 24, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 482, 745 N.E.2d 403).   We note in addition that defendant initially elicited the testimony that he had a curfew and was not permitted in locations where alcohol was served and thus will not be heard to contend that the court erred in admitting such testimony when it thereafter was elicited by the People (see People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Vazquez, 28 A.D.3d 1100, 813 N.Y.S.2d 613, lv. denied 9 N.Y.3d 965, 848 N.Y.S.2d 34, 878 N.E.2d 618).   Contrary to the further contention of defendant, the court did not abuse its discretion in denying his motion for a mistrial based on the prosecutor's violation of the court's Sandoval ruling.   The court's “immediate curative instruction ․ reduced [the] prejudice [to defendant] to the extent that reversal on such ground[ ] is not warranted” (People v. Nusbaum, 222 A.D.2d 723, 726, 634 N.Y.S.2d 852, lv. denied 87 N.Y.2d 1023, 644 N.Y.S.2d 156, 666 N.E.2d 1070;  see also People v. Cruz, 272 A.D.2d 922, 923, 709 N.Y.S.2d 717, affd. 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112).

 By failing to renew his motion for a trial order of dismissal at the close of proof, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   Contrary to defendant's further contention, 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).   Great deference is accorded to the jury's resolution of credibility issues (see People v. Gritzke, 292 A.D.2d 805, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4), and it cannot be said herein that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review his contentions that he was deprived of his right to a fair trial based on alleged prosecutorial misconduct on summation (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800), and that the court's responses to oral inquiries from a juror improperly interfered with jury deliberations (see CPL 470.05 [2] ).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defense counsel's failure to object to portions of the prosecutor's summation did not deprive defendant of effective assistance of counsel (see Smith, 32 A.D.3d at 1292, 821 N.Y.S.2d 356).  “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   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 is unanimously affirmed.

MEMORANDUM: