PEOPLE v. DUGAN

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

PEOPLE of the State of New York, Respondent, v. Sean K. DUGAN, Appellant.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, CALLAHAN, DOERR and BOEHM, JJ. John Cirando, Syracuse, for Appellant. Daryl Brautigam, Fredonia, for Respondent.

 We conclude that defendant's conviction of burglary in the second degree and criminal possession of stolen property in the third degree is based on legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that County Court properly admitted evidence that, during his first trial, defendant absconded during jury deliberations.   That conduct was indicative of a consciousness of guilt and the court properly instructed the jury concerning the weakness of that flight evidence (see, People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263, rearg. denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217).

 Defendant contends that the court erred in denying his motion for a mistrial after a prosecution witness on direct and cross-examination made reference to defendant being in jail.   The court, upon defense counsel's objection, immediately struck the remarks and promptly instructed the jury to disregard them, thus dissipating any prejudice to defendant (see, e.g., People v. Cody, 207 A.D.2d 962, 963, 617 N.Y.S.2d 77, lv. denied 85 N.Y.2d 860, 624 N.Y.S.2d 379, 648 N.E.2d 799;  People v. Cruz, 72 A.D.2d 748, 749, 421 N.Y.S.2d 263).   Consequently, the court did not abuse its discretion in denying the motion for a mistrial (see, e.g., People v. Carfagna, 212 A.D.2d 960, 624 N.Y.S.2d 986, lv. denied 85 N.Y.2d 907, 627 N.Y.S.2d 330, 650 N.E.2d 1332).   We likewise reject the contention that the brief and inadvertent viewing of defendant in handcuffs denied defendant a fair trial (see, People v. Harper, 47 N.Y.2d 857, 858, 419 N.Y.S.2d 61, 392 N.E.2d 1244;  People v. Fortunato, 161 A.D.2d 455, 555 N.Y.S.2d 366, lv. denied 76 N.Y.2d 892, 561 N.Y.S.2d 555, 562 N.E.2d 880;  People v. Larrabee, 134 A.D.2d 855, 521 N.Y.S.2d 913, lv. denied 71 N.Y.2d 898, 527 N.Y.S.2d 1008, 523 N.E.2d 315).

Defendant's further contention that the court erred in instructing the jury concerning the inference that may be drawn from the recent and exclusive possession of stolen property is unpreserved for our review (see, CPL 470.05 [2];  People v. DiMauro, 113 A.D.2d 840, 493 N.Y.S.2d 506, lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 563).   Similarly unpreserved is the contention that defendant was unduly prejudiced by the prosecutor's improper remarks on summation wherein the prosecutor vouched for the credibility of his witness (see, CPL 470.05[2];  People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299;  People v. Eldridge, 221 A.D.2d 966, 966-967, 634 N.Y.S.2d 603, lv. denied 87 N.Y.2d 1019, 644 N.Y.S.2d 152, 666 N.E.2d 1066).   In any event, the prosecutor's remarks constitute a fair response to defense counsel's summation (see, People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Waldron, 154 A.D.2d 635, 546 N.Y.S.2d 460, lv. denied 75 N.Y.2d 777, 551 N.Y.S.2d 919, 551 N.E.2d 120).

We reject the contention that defendant was deprived of effective assistance of counsel.   The record establishes that defense counsel provided meaningful representation (see, People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: