PEOPLE v. CLARKE (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

On January 30, 2013, the complainant was shot multiple times at close range.  Bullets struck both of his legs, his right shoulder, his left elbow, and the fingers of his left hand.  After the shooting, the complainant was taken to the hospital.  He refused to speak to police officers about the shooter until after he spoke to his father.  After the complainant spoke to his father and sister that evening, he told police officers that he had been shot by the defendant, whom the complainant knew because they lived in the same building.

The defendant's contention that the evidence was not legally sufficient to establish his identity as the perpetrator of the crimes is unpreserved for appellate review (see CPL 470.05[2];  Penal Law § 120.10[1];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, the defendant's contention is without merit.  Viewed in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence was legally sufficient to establish the defendant's identity as the perpetrator beyond a reasonable doubt.  Furthermore, 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), we are satisfied that the jury's finding that the defendant was the perpetrator of the crime 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 defendant also failed to preserve for appellate review his contention that the evidence was not legally sufficient to prove the serious physical injury element of assault in the first degree (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, viewed in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence, including the complainant's testimony and the medical evidence, was legally sufficient to establish that the complainant sustained a serious physical injury within the meaning of Penal Law § 10.00(10) (see People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167, affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071;  People v. Lindsay, 131 A.D.3d 625, 626, 16 N.Y.S.3d 566).  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 at 348–349, 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the count of assault in the first degree was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, since he either failed to object or only made general objections to the challenged remarks (see CPL 470.05[2];  People v. Baez, 137 A.D.3d 805, 805, 27 N.Y.S.3d 161).  In any event, the majority of the comments alleged to be prejudicial were either fair comment on the evidence or a fair response to defense counsel's summation (see People v. Fowler, 157 A.D.3d 902, 902–903, 66 N.Y.S.3d 902;  People v. Baez, 137 A.D.3d at 805, 27 N.Y.S.3d 161).  To the extent that any of the prosecutor's comments were improper, they were not “egregious or pervasive enough to have deprived the defendant of a fair trial” (People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589;  see People v. Valdez, 262 A.D.2d 338, 339, 691 N.Y.S.2d 91).

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

LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.