PEOPLE v. MOORE (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered March 15, 2004, convicting him of robbery in the first degree, assault in the first degree, and burglary in the first degree, 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, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v. Adams, 18 A.D.3d 567, 794 N.Y.S.2d 651).

 Contrary to the defendant's contention, the prosecutor's comment about a photograph during summation did not impermissibly shift the burden of proof.   The challenged remark was responsive to the defense counsel's summation (see People v. Galloway, 54 N.Y.2d 396, 399-400, 446 N.Y.S.2d 9, 430 N.E.2d 885), within the bounds of permissible rhetorical comment, and constituted fair comment on the evidence (see People v. Justino, 26 A.D.3d 345, 810 N.Y.S.2d 205, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380;  People v. Urena, 24 A.D.3d 693, 805 N.Y.S.2d 841, lv. denied 6 N.Y.3d 819, 812 N.Y.S.2d 458, 845 N.E.2d 1289).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

 The defendant's pro se contention that his statutory right to release from pretrial detention on speedy trial grounds (see CPL 30.30[2] ) has been rendered academic by the trial and judgment of conviction (see People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 125, 480 N.Y.S.2d 719, 470 N.E.2d 146).

The defendant's contention in his pro se brief regarding 911 audiotapes is unpreserved for appellate review (see People v. Sydnor, 254 A.D.2d 508, 679 N.Y.S.2d 832) and, in any event, no Rosario violation (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) occurred as the 911 callers never testified at the trial (see CPL 240.45[1];  People v. Simons, 280 A.D.2d 688, 721 N.Y.S.2d 254;  People v. Jackson, 271 A.D.2d 455, 456, 707 N.Y.S.2d 128).

The defendant's contention raised in his supplemental pro se brief that evidence concerning counts of which he was acquitted prejudicially “spilled over” to counts of which he was convicted is unpreserved for appellate review and without merit (see People v. Baghai-Kermani, 84 N.Y.2d 525, 532, 620 N.Y.S.2d 313, 644 N.E.2d 1004;  People v. Clarke, 7 A.D.3d 537, 775 N.Y.S.2d 588).

The defendant's remaining contentions, raised in his supplemental pro se brief, are without merit.