PEOPLE v. SMITH

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. David J. SMITH, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  SCUDDER, J.P., KEHOE, GORSKI, SMITH, AND PINE, JJ. Kathleen E. Casey, Barker, for Defendant-Appellant. David J. Smith, Defendant-Appellant Pro Se. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of assault in the first degree (Penal Law § 120.10[1], [3] ) and one count of gang assault in the second degree (§ 120.06).   Defendant presented evidence after County Court denied his motion to dismiss the indictment at the close of the People's case, and therefore waived his contention that the court erred in denying that motion (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Allen, 1 A.D.3d 947, 948, 767 N.Y.S.2d 717, lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362).   By failing to renew his motion to dismiss the indictment at the close of proof, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see Hines, 97 N.Y.2d at 61, 736 N.Y.S.2d 643, 762 N.E.2d 329;  People v. Adamus, 31 A.D.3d 1210, 817 N.Y.S.2d 837;  People v. Swail, 19 A.D.3d 1013, 796 N.Y.S.2d 797, lv. denied 6 N.Y.3d 759, 810 N.Y.S.2d 427, 843 N.E.2d 1167, 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982.)  We reject defendant's contention that the testimony of an accomplice is incredible as a matter of law, and therefore that the verdict is against the weight of the evidence (see Adamus, 31 A.D.3d 1210, 817 N.Y.S.2d 837;  People v. Rimmen, 17 A.D.3d 1078, 1078-1079, 794 N.Y.S.2d 246, lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272).   The jury had the opportunity to assess the testimony and credibility of the accomplice, who received favorable treatment in exchange for his testimony and who admitted that he lied to the grand jury and participated in the crime (see People v. Pace, 305 A.D.2d 984, 985, 758 N.Y.S.2d 568, lv. denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488).   The jury's credibility determination is entitled to great deference, and we conclude that the jury did not fail to give the evidence the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  Pace, 305 A.D.2d at 985, 758 N.Y.S.2d 568).

 With the exception of the claim that his attorney failed to object to portions of the prosecutor's summation, the contention of defendant that he was denied effective assistance of counsel is based upon information that is dehors the record, and therefore not reviewable on direct appeal (see People v. Lopez, 28 A.D.3d 234, 812 N.Y.S.2d 99;  see also People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 443 N.E.2d 486).   We conclude that defense counsel's failure to object to portions of the summation did not deprive defendant of meaningful representation (see generally People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19).   However, by failing to object during the prosecutor's summation, defendant failed to preserve for our review his contention that remarks made during summation constituted prosecutorial misconduct that deprived him of a fair trial (see People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979;  People v. Norman, 1 A.D.3d 884, 767 N.Y.S.2d 728, lv. denied 1 N.Y.3d 599, 776 N.Y.S.2d 231, 808 N.E.2d 367).   We nevertheless conclude that the prosecutor's summation constituted fair response to defense counsel's summation, and did not exceed “the broad bounds of rhetorical comment permissible in closing argument” (People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;  see People v. Williams, 28 A.D.3d 1059, 813 N.Y.S.2d 606).

We have reviewed defendant's remaining contention and the contentions contained in the pro se supplemental brief, and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: