PEOPLE v. BAEZ (2009)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered September 4, 2003, convicting him of kidnapping in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the jury verdict was repugnant is unpreserved for appellate review (see CPL 470.05[2];  People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Brown, 38 A.D.3d 676, 677, 831 N.Y.S.2d 510).   In any event, contrary to the defendant's contention, the verdict was not repugnant as a matter of law (see People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617).

 Also contrary to the defendant's contention, the trial court did not deny him the right to confront the witnesses against him by its decision to limit his cross-examination of a certain prosecution witness (see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674;  People v. Stevens, 45 A.D.3d 610, 611, 845 N.Y.S.2d 114).   Nor was the defendant denied his right to a fair trial by the testimony of a certain police officer that markings on the window of a vehicle involved with the subject incident looked like “cleansed markings” (see People v. Russell, 165 A.D.2d 327, 332, 567 N.Y.S.2d 548).

 The defendant's claim that the prosecutor's allegedly improper summation remarks denied him his right to a fair trial is unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Garcia, 52 A.D.3d 734, 858 N.Y.S.2d 911).   In any event, the challenged remarks did not deny the defendant his right to a fair trial, as “the ․ remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation” (People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83;  see People v. Dorgan, 42 A.D.3d 505, 838 N.Y.S.2d 787;  People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;  People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714;  People v. Vaughn, 209 A.D.2d 459, 460, 619 N.Y.S.2d 573).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions raised in Point III of his brief are without merit.