PEOPLE v. SEPULVEDA (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered March 12, 2007, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt.

 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, 349, 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 their 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).   Any inconsistencies between the complainant's testimony and that of the other witnesses were minor and did not render their testimony incredible or unreliable (see People v. Fields, 28 A.D.3d 789, 812 N.Y.S.2d 888).

 The defendant's contention that the prosecutor's summation denied him due process and a fair trial is unpreserved for appellate review, as he failed to object to the remarks he now contests (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. Small, 45 A.D.3d 705, 844 N.Y.S.2d 880).   In any event, a review of the challenged comments reveals that they were either responsive to defense counsel's summation or fair comment on the evidence (see People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127;  People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;  People v. Russo, 201 A.D.2d 512, 513, 607 N.Y.S.2d 413).

 The defendant's contention that defense counsel's failure to preserve for appellate review his claim that the verdict was legally insufficient and his failure to object to any of the challenged summation comments denied him the effective assistance of counsel is without merit.   The defense counsel provided “meaningful representation” over the course of the trial (People v. Benevento, 91 N.Y.2d 708, 710, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see People v. Jean, 21 A.D.3d 499, 799 N.Y.S.2d 740;  People v. Daly, 20 A.D.3d 542, 799 N.Y.S.2d 537).

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