PEOPLE v. MITCHELL (2009)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered September 5, 2007, convicting him of manslaughter in the first degree, 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.

 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, 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, 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 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).

 While it was proper for the prosecutor to elicit testimony that the defendant attempted to procure a false alibi (see People v. Moses, 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4), eliciting the witness's reason for agreeing to provide one was error (see People v. Buzzi, 238 N.Y. 390, 398-399, 144 N.E. 653;  cf. People v. Myrick, 31 A.D.3d 668, 669, 818 N.Y.S.2d 287).   However, such error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his conviction (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 Furthermore, the defendant's contention concerning a comment made by the prosecutor during summation is unpreserved for appellate review, as he raised only a general objection to the contested remark, failed to request curative instructions, and did not timely move for a mistrial on that ground (see CPL 470.05[2];  People v. Dashosh, 59 A.D.3d 731, 873 N.Y.S.2d 730;  People v. Miller, 57 A.D.3d 568, 869 N.Y.S.2d 150).   In any event, the challenged portion of the prosecutor's summation constituted fair comment on, or reasonable inferences drawn from, the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Hughley, 43 A.D.3d 1180, 842 N.Y.S.2d 99).

The defendant received the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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 contentions are unpreserved for appellate review and, in any event, are without merit.