PEOPLE v. CLARKE (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brennan, J.), rendered September 27, 2005, convicting him of robbery in the first degree and burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction for burglary in the second degree is unpreserved for appellate review because he failed to move for a trial order of dismissal (see CPL 290.10, 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Howard, 50 A.D.3d 823, 854 N.Y.S.2d 776; People v. Dowling, 28 A.D.3d 788, 812 N.Y.S.2d 889). 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 of burglary in the second degree beyond a reasonable doubt (see People v. McKinney, 46 A.D.3d 705, 847 N.Y.S.2d 228; People v. Bopp, 151 A.D.2d 590, 542 N.Y.S.2d 350). Moreover, upon our independent review pursuant to 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).

Furthermore, the defendant's contention that the court erred in allowing a detective to testify that he arrested the defendant after a conversation with an accomplice who did not testify at trial is unpreserved for appellate review (see CPL 470.05[2]; People v. Reynolds, 46 A.D.3d 845, 848 N.Y.S.2d 278; People v. Martin, 261 A.D.2d 488, 690 N.Y.S.2d 125; People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847). In any event, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Williams, 60 A.D.3d 709, 874 N.Y.S.2d 529; People v. Mack, 14 A.D.3d 517, 787 N.Y.S.2d 397; People v. Latta, 295 A.D.2d 449, 743 N.Y.S.2d 315; People v. Elliott, 256 A.D.2d 418, 682 N.Y.S.2d 625).

The defendant's challenges to remarks made by the prosecutor during summation are unpreserved for appellate review because the defendant either failed to object to the remarks or made only general objections, and did not request further curative instructions or move for a mistrial after the court sustained an objection and issued a curative instruction (see CPL 470.05[2]; People v. Boyce, 54 A.D.3d 1052, 866 N.Y.S.2d 203; People v. Bermudez, 36 A.D.3d 928, 828 N.Y.S.2d 554; People v. Robinson, 281 A.D.2d 564, 721 N.Y.S.2d 830). In any event, the challenged remarks either were responsive to defense counsel's summation (see People v. Rhodes, 11 A.D.3d 487, 782 N.Y.S.2d 788), constituted fair comment on the evidence (see People v. Arnold, 60 N.Y.2d 960), or were harmless error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

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

The defendant's remaining contention is without merit.