PEOPLE v. GREEN (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P. Griffin, J.), rendered November 20, 2014, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial by the testimony of prosecution witnesses regarding their reluctance or fear to cooperate with the police, as the defendant either failed to object or raised only general objections to the testimony at issue (see CPL 470.05[2];  People v. McClinton, 187 A.D.3d 1056, 1057, 131 N.Y.S.3d 249;  People v. Byron, 68 A.D.3d 778, 778–779, 891 N.Y.S.2d 110).  In any event, the defendant was not deprived of a fair trial by the testimony at issue, which was relevant to explain why the witnesses initially declined to cooperate with the police (see People v. Byron, 68 A.D.3d at 779, 891 N.Y.S.2d 110).  Moreover, the witnesses expressed only a generalized fear of being considered a “snitch” in the community, without making statements suggestive of a fear of retaliation by the defendant or an individual associated with the defendant (see People v. Wilson, 123 A.D.3d 626, 999 N.Y.S.2d 412).

Furthermore, the defendant's contention that he was deprived of a fair trial by various comments made by the prosecutor during summation, and questions posed by the prosecutor during cross-examination, is mostly unpreserved for appellate review, as, with respect to a majority of the challenged comments and questions, the defendant failed to object or made only general objections, failed to request curative instructions, and did not timely move for a mistrial on the specific grounds now claimed (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. Escalona, 237 A.D.3d 968, ––––, ––– N.Y.S.3d ––––;  People v. Flippen, 236 A.D.3d 815, 816, 227 N.Y.S.3d 736).  In any event, the challenged comments were fair comment on the evidence or permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or were responsive to arguments presented in defense counsel's summation (see People v. Milburn, 226 A.D.3d 927, 929, 209 N.Y.S.3d 513).  Furthermore, to the extent that the challenged comments and questions were improper, they were not so pervasive or egregious as to have deprived the defendant of a fair trial (see People v. Escalona, 237 A.D.3d at ––––, ––– N.Y.S.3d ––––;  People v. Flippen, 236 A.D.3d at 816, 227 N.Y.S.3d 736).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by defense counsel's failure to preserve certain claims for appellate review (see People v. Escalona, 237 A.D.3d at ––––, ––– N.Y.S.3d ––––).  The 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 (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Wright, 237 A.D.3d 758, ––––, 230 N.Y.S.3d 662, 663), and the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

CHAMBERS, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.