PEOPLE v. BENSABEUR (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael Gary, J.), rendered April 9, 2019, convicting him of burglary in the second degree as a sexually motivated felony, attempted rape in the first degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

ORDERED that the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana is dismissed as academic;  and it is further,

ORDERED that the judgment is affirmed insofar as reviewed.

For his actions of, inter alia, forcing himself inside the complainant's home, pushing her onto a couch, pushing up her dress, attempting to pull down her pantyhose, and slapping her, then unzipping his pants and exposing and stroking his penis while positioned on top of her, the defendant was convicted of burglary in the second degree as a sexually motivated felony and attempted rape in the first degree.  The defendant was also convicted of unlawful possession of marihuana, which was recovered from his person pursuant to a search incident to his arrest.

The defendant's conviction of unlawful possession of marihuana became a nullity by operation of law, independently of any appeal, and without requiring any action by this Court (see CPL 160.50[5];  People v. Carlton, 218 A.D.3d 790, 792, 194 N.Y.S.3d 57;  People v. Hay, 207 A.D.3d 748, 749, 170 N.Y.S.3d 914).  Consequently, the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana must be dismissed as academic (see People v. Clements, 221 A.D.3d 1023, 1024, 200 N.Y.S.3d 96).

The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's comments during the opening statement and summation is mostly unpreserved for appellate review because he failed to object to the majority of the remarks at issue (see CPL 470.05[2]).  In any event, the defendant's contention is without merit.  Most of the prosecutor's comments made during the opening statement served to outline the evidence that the People planned to present at trial (see id. § 260.30[3];  People v. Kurtz, 51 N.Y.2d 380, 434 N.Y.S.2d 200, 414 N.E.2d 699;  People v. Kingsberry, 194 A.D.3d 843, 844–845, 143 N.Y.S.3d 887;  People v. McClinton, 180 A.D.3d 712, 714, 119 N.Y.S.3d 132).  Furthermore, most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668), were responsive to arguments and theories presented in defense counsel's summation (see People v. Gross, 88 A.D.3d 905, 906, 931 N.Y.S.2d 129), or were permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668).  To the extent that some of the prosecutor's opening or summation comments were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v. Kiarie, 198 A.D.3d 814, 815, 155 N.Y.S.3d 212;  People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589;  People v. Nanand, 137 A.D.3d 945, 26 N.Y.S.3d 585;  People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146).

The defendant's contention that negative identification evidence was improperly admitted is unpreserved for appellate review (see CPL 470.05[2];  People v. Wilder, 93 N.Y.2d 352, 690 N.Y.S.2d 483, 712 N.E.2d 652), and we decline to reach the issue in the exercise of our interest of justice jurisdiction (see People v. Garcia, 270 A.D.2d 498, 499, 706 N.Y.S.2d 879).

The defendant was afforded the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

CONNOLLY, J.P., CHAMBERS, WARHIT and VENTURA, JJ., concur.