PEOPLE v. HERCULES (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 25, 2004, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).

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 of assault in the second degree beyond a reasonable doubt (see People v. Johnson, 40 A.D.3d 1270, 1271-1272, 836 N.Y.S.2d 330;  People v. Millett, 26 A.D.3d 345, 346, 812 N.Y.S.2d 554).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), 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 trial court providently exercised its discretion in limiting the defendant's cross-examination of the complaining witnesses concerning an alleged cooperation agreement with the police (see People v. Rodriguez, 191 A.D.2d 723, 723-724, 595 N.Y.S.2d 799).

 The defendant contends that he was deprived of his right to a fair trial because of certain allegedly improper comments made by the prosecutor on summation.   However, the defendant's arguments in this regard are not preserved for appellate review (see CPL 470.05[2] ), as the defendant either failed to object to the challenged comments, made only a general objection, or failed to request curative instructions when the trial court sustained his objections (see People v. German, 45 A.D.3d 861, 846 N.Y.S.2d 348).   In any event, the challenged remarks were proper because they constituted fair comment on the evidence, a fair response to the defense summation, or harmless error (see People v. Colon, 45 A.D.3d 776, 844 N.Y.S.2d 897;  People v. Urena, 24 A.D.3d 693, 805 N.Y.S.2d 841).

 The defendant's contention that he was deprived of his right to a fair trial because the trial court failed to give adequate limiting instructions regarding the purpose for which evidence of certain prior bad acts was received is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, since the court did include such limiting instructions in its preliminary remarks and in its charge to the jury, the omission of such instructions at the time the evidence was admitted did not deprive the defendant of a fair trial (see People v. Norman, 40 A.D.3d 1128, 1129-1130, 837 N.Y.S.2d 694).

 The defendant contends that the trial court erred in denying his request to charge assault in the third degree (see Penal Law § 120.00[1] ) as a lesser-included offense of assault in the second degree (see Penal Law § 120.05[2] ).   However, the court properly denied the request, because even when viewing the evidence in the light most favorable to the defendant, no reasonable view of the evidence supported a finding that he assaulted the complaining witness but did not use a deadly weapon or dangerous instrument (see People v. Vaughn, 36 A.D.3d 434, 436, 831 N.Y.S.2d 27;  CPL 300.50 [1] ).

The defendant's contention that he was deprived of his right to a fair trial by virtue of certain comments and questioning by the trial court is unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, is without merit (see People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243).