The People, etc., respondent, v. Darryl Brooks, appellant. (2011)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Darryl Brooks, appellant.

2009–07623 (Ind.No. 2885 /07)

Decided: November 01, 2011

WILLIAM F. MASTRO, J.P. RANDALL T. ENG ARIEL E. BELEN L. PRISCILLA HALL, JJ.

Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, Suzanne D. O'Hare, and Gretchen Robinson of counsel), for respondent. The defendant's challenge to the legal sufficiency of the evidence, raised in his pro se supplemental brief, is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), 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 NY3d 342), 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 NY3d 383, 410,cert. denied542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). 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 NY3d 633).

Argued—October 11, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered July 17, 2009, convicting him of robbery in the first degree and menacing in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that certain comments made by the prosecutor during summation were improper and, thus, deprived him of a fair trial, is unpreserved for appellate review (see CPL 470.05[2] ), because he made only a general objection to one of the comments he now challenges (see People v. Tonge, 93 N.Y.2d 838; People v. Nunez, 82 AD3d 1128, 1129), and did not object to the other comments he now challenges (see People v. West, 86 AD3d 583, 584; People v. Bajana, 82 AD3d 1111, 1112). In any event, although some of the prosecutor's comments improperly mischaracterized the defense as questioning the honesty of eyewitnesses, the comments were not “so flagrant or pervasive as to deny the defendant a fair trial” (People v. Almonte, 23 AD3d 392, 394; see People v. Bajana, 82 AD3d at 1112; People v. Rayford, 80 AD3d 780, 781; People v. Garcia–Villegas, 78 AD3d 727, 728; People v. Hendrix, 60 AD3d 1081, 1082–1083). Moreover, the Supreme Court instructed the jurors that they were the finders of fact, that the arguments of counsel were not evidence, and that they were to assess the witnesses's credibility (see People v. Valerio, 70 AD3d 869).

Defense counsel's failure to object to the improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel (see People v. Taylor, 1 NY3d 174; People v. Bajana, 82 AD3d at 1112). Moreover, defense counsel otherwise provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147).

MASTRO, J.P., ENG, BELEN and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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