PEOPLE v. JEAN MARIE (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered August 14, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the legal sufficiency of the identification evidence is unpreserved for appellate review (see CPL 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. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Roberts, 64 A.D.3d 796, 882 N.Y.S.2d 695;  People v. Arias, 64 A.D.3d 786, 882 N.Y.S.2d 903).   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, 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, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Alexis, 65 A.D.3d 1160, 885 N.Y.S.2d 340), 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;  People v. David, 65 A.D.3d 1163, 885 N.Y.S.2d 215;  People v. Silberzweig, 58 A.D.3d 762, 871 N.Y.S.2d 690, lv. denied 12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082).   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).

 The discrepancies and inconsistencies between the identification testimony of the complainant and statements in the police reports were properly for the jury to consider (see People v. Calabria, 3 N.Y.3d 80, 783 N.Y.S.2d 321, 816 N.E.2d 1257;  People v. Stroman, 60 A.D.3d 708, 874 N.Y.S.2d 532, lv. denied 12 N.Y.3d 921, 884 N.Y.S.2d 702, 912 N.E.2d 1083;  People v. Fields, 28 A.D.3d 789, 790, 812 N.Y.S.2d 888;  People v. Almonte, 23 A.D.3d 392, 806 N.Y.S.2d 95;  People v. White, 192 A.D.2d 736, 736-737, 597 N.Y.S.2d 117).   Moreover, the minor discrepancies between the complainant's description of the defendant's height, weight, and clothing and his actual physical appearance were also a proper consideration for the jury (see People v. Colon, 42 A.D.3d 549, 550, 840 N.Y.S.2d 110;  People v. Caballero, 177 A.D.2d 496, 575 N.Y.S.2d 710).   Furthermore, the fact that one of the People's witnesses had an unsavory background and testified pursuant to a cooperation agreement did not render his testimony incredible (see People v. Manley, 60 A.D.3d 870, 875 N.Y.S.2d 542, lv. denied 12 N.Y.3d 927, 884 N.Y.S.2d 708, 912 N.E.2d 1089;  People v. Adams, 302 A.D.2d 601, 755 N.Y.S.2d 641;  People v. Harris, 276 A.D.2d 562, 562-563, 714 N.Y.S.2d 244;  People v. Alston, 243 A.D.2d 573, 663 N.Y.S.2d 224).

The defendant was not deprived of his right to a fair trial by the prosecutor's comments during summation.   Although the prosecutor's remark regarding defense counsel was improper (see People v. Torres, 223 A.D.2d 741, 742, 637 N.Y.S.2d 214), any prejudice that may have resulted from the remark was alleviated when the trial court sustained the defendant's objection and provided a curative instruction to the jury (see People v. Warren, 27 A.D.3d 496, 498, 812 N.Y.S.2d 569).

 The defendant's challenges to the prosecutor's remarks on the issue of cross-racial identification were not preserved for appellate review, as defense counsel failed to seek further ameliorative action with respect to those comments after his objections were sustained (see CPL 470.05[2];  People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;  People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135;  People v. Norman, 40 A.D.3d 1130, 1131, 837 N.Y.S.2d 277).   In any event, the remarks were fair comment upon the evidence and permissive responses to arguments presented in summation by defense counsel (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Smalls, 65 A.D.3d 708, 883 N.Y.S.2d 910;  People v. Maisonett, 64 A.D.3d 794, 883 N.Y.S.2d 298;  People v. Pinckney, 27 A.D.3d 581, 582, 811 N.Y.S.2d 751;  People v. Dyer, 245 A.D.2d 299, 667 N.Y.S.2d 273).

Given the circumstances of this case, any impropriety with respect to the remaining remarks was harmless in light of the overwhelming evidence of the defendant's guilt and the absence of a significant probability that, had the remarks not been made, the defendant would have been acquitted (see People v. Brosnan, 32 N.Y.2d 254, 262, 344 N.Y.S.2d 900, 298 N.E.2d 78;  People v. Tucker, 27 A.D.3d 592, 811 N.Y.S.2d 432).

The defendant's ineffective assistance of counsel claims are not reviewable on direct appeal because they involve matter outside the record (see People v. Madrid, 52 A.D.3d 532, 533, 859 N.Y.S.2d 715;  People v. Alvarez, 51 A.D.3d 470, 856 N.Y.S.2d 111;  People v. Staropoli, 49 A.D.3d 568, 568-569, 855 N.Y.S.2d 159;  People v. Haynes, 39 A.D.3d 562, 564, 833 N.Y.S.2d 193;  People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83;  People v. Zimmerman, 309 A.D.2d 824, 765 N.Y.S.2d 524;  People v. Boyd, 244 A.D.2d 497, 664 N.Y.S.2d 335).