PEOPLE v. WIGGINS (2006)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 21, 2003, convicting him of murder in the second degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree (two counts), 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. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 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] ).

 The defendant's challenge to the prosecutor's comments during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Williams, 305 A.D.2d 703, 759 N.Y.S.2d 684).   In any event, the defendant was not denied his right to a fair trial by the prosecutor's comments.   Although the prosecutor improperly referred to matters outside the “four corners of the evidence” (People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564), any prejudice that may have resulted therefrom was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury (see People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 399;  People v. Efferson, 300 A.D.2d 674, 751 N.Y.S.2d 888;  People v. Burrell, 178 A.D.2d 422, 577 N.Y.S.2d 289).

 The defendant correctly concedes that his challenge to the trial court's jury charge is unpreserved for appellate review (see CPL 470.05 [2];  People v. Rivera, 307 A.D.2d 369, 369-370, 762 N.Y.S.2d 828;  People v. Brown, 209 A.D.2d 532, 619 N.Y.S.2d 625).   In any event, the court's interested witness charge was proper (see People v. Varughese, 21 A.D.3d 1126, 1128, 801 N.Y.S.2d 415, lv. denied 6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804;  People v. Kallamni, 14 A.D.3d 316, 316-317, 787 N.Y.S.2d 1;  cf. People v. Jackson, 74 N.Y.2d 787, 790, 545 N.Y.S.2d 95, 543 N.E.2d 738).   Moreover, no circumstantial evidence charge was necessary, as the People adduced both direct and circumstantial evidence of the defendant's guilt (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014).

 The defendant's contention that he was denied a fair trial by negative news reports during the trial regarding a street gang to which he belonged is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, “[t]he defendant has failed to show that any juror formed an opinion based on the negative publicity.   Absent such a showing, the defendant's argument must fail” (People v. Hardwick, 137 A.D.2d 714, 718, 524 N.Y.S.2d 798).

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