PEOPLE v. MOORE (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered June 30, 1998, convicting him of tampering with a witness in the third degree, assault in the third degree (three counts), and harassment in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's claim that the People failed to present legally sufficient evidence to sustain his conviction for tampering with a witness in the third degree is unpreserved for appellate review (see, People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Dixon, 184 A.D.2d 725, 726).  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 it was legally sufficient to establish the essential elements of the crime beyond a reasonable doubt.   Evidence of a telephone call, made after charges were filed and while the defendant was incarcerated, during which the defendant told the victim that he would “get” her when he was released and “not to go to court”, is sufficient to sustain a conviction for tampering with a witness in the third degree.

The challenged comments in the prosecutor's summation were either responsive to the defendant's summation or within the bounds of permissible rhetorical comment (see, People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Turner, 214 A.D.2d 594, 625 N.Y.S.2d 233;  People v. Miller, 183 A.D.2d 790, 583 N.Y.S.2d 517;  People v. Wilson, 173 A.D.2d 751, 570 N.Y.S.2d 626).

The defendant's remaining contention is without merit (People v. Astacio, 131 A.D.2d 686, 516 N.Y.S.2d 508).

MEMORANDUM BY THE COURT.