PEOPLE v. RATTARY (2020)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered March 29, 2017, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of five years, unanimously affirmed.

The court properly declined to deliver a circumstantial evidence charge, because both direct and circumstantial evidence established defendant's guilt, even if some of the direct evidence required the drawing of inferences (see People v. Roldan, 88 N.Y.2d 826, 643 N.Y.S.2d 960, 666 N.E.2d 553 [1996];  People v. Singleton, 102 A.D.3d 517, 518, 958 N.Y.S.2d 131 [1st Dept. 2013], lv denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ).  Although the victim's girlfriend did not testify, her undisputedly admissible 911 call, in which she unequivocally stated that defendant had just stabbed the victim and that the altercation was still in progress in her presence, constituted direct evidence.  In addition, the bloody knife recovered in close proximity to defendant was direct evidence of criminal possession of a weapon.  In any event, given the overwhelming direct and circumstantial evidence, there is no reasonable possibility that the absence of a circumstantial evidence charge affected the verdict (see People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994] ).

Defendant's challenges to the prosecutor's summation are unpreserved because defendant failed to object, only made general objections, or failed to request further relief after the court sustained his objections (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and we decline to review these claims in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  To the extent the prosecutor's remarks could be viewed as shifting the burden of proof, the court's curative actions were sufficient to prevent any prejudice.  The prosecutor did not vouch for witnesses, but responded to the defense summation with record-based arguments.  In any event, nothing in the summation was so egregious as to deprive defendant of a fair trial.