PEOPLE v. GILL

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Bryant GILL, appellant.

Decided: September 23, 2008

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and RUTH C. BALKIN, JJ. Steven Banks, New York, N.Y. (Adrienne Hale of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Marie John-Drigo of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered February 16, 2006, convicting him of rape in the first degree, sexual abuse in the first degree, burglary in the first degree, robbery in the second degree, assault in the third degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's claims regarding his cross-examination by the prosecutor at trial are unpreserved for appellate review because he failed to raise a specific objection that the prosecutor's questions were beyond the bounds of the Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 374-377, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Hill, 47 A.D.3d 838, 850 N.Y.S.2d 186;  People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127).   Moreover, several defense objections to the prosecutor's questions were sustained.   Since defense counsel did not ask for a curative instruction or move for a mistrial when any of these objections was sustained, the trial court corrected the error to the defendant's satisfaction, and the issues pertaining to those questions are unpreserved for appellate review (see People v. Morel, 297 A.D.2d 757, 747 N.Y.S.2d 553;  see also People v. Pinkney, 48 A.D.3d 707, 708, 852 N.Y.S.2d 306, lv. denied 10 N.Y.3d 843, 859 N.Y.S.2d 402, 889 N.E.2d 89).   In any event, the prosecutor's cross-examination of the defendant was, in part, not unduly prejudicial (see Portuondo v. Agard, 529 U.S. 61, 67, 87, 120 S.Ct. 1119, 146 L.Ed.2d 47;  People v. Pinkney, 48 A.D.3d at 708, 852 N.Y.S.2d 306;  People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305) and, to the extent that any of the prosecutor's questions posed to the defendant went beyond the bounds of the Sandoval ruling or were otherwise improper, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Duggins, 1 A.D.3d 450, 451, 766 N.Y.S.2d 702, affd. 3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942).

 The defendant's contention that reversal is required because of improper remarks made by the prosecutor during summation is unpreserved for appellate review.   The defendant either failed to object to the challenged remarks, registered one-word general objections, or, when an objection was sustained, failed to request further instructions or move for a mistrial (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. Osorio, 49 A.D.3d 562, 563, 855 N.Y.S.2d 163;  People v. Robbins, 48 A.D.3d 711, 850 N.Y.S.2d 912, lv. denied 10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258;  People v. Brown, 48 A.D.3d 590, 591, 849 N.Y.S.2d 901, lv. denied 10 N.Y.3d 860, 860 N.Y.S.2d 486, 890 N.E.2d 249;  People v. Muniz, 44 A.D.3d 1074, 1075, 844 N.Y.S.2d 396;  People v. Salnave, 41 A.D.3d 872, 874, 838 N.Y.S.2d 657).   In any event, the challenged remarks constituted fair response to comments made during defense counsel's summation, were fair comment on the evidence, or were harmless (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Crimmins, 36 N.Y.2d at 241, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Osorio, 49 A.D.3d at 562, 855 N.Y.S.2d 163;  People v. Brown, 48 A.D.3d at 591, 849 N.Y.S.2d 901;  People v. Dorsette, 47 A.D.3d 728, 849 N.Y.S.2d 610, lv. denied 10 N.Y.3d 862, 860 N.Y.S.2d 488, 890 N.E.2d 251;  People v. Muniz, 44 A.D.3d at 1075, 844 N.Y.S.2d 396;  People v. Montero, 44 A.D.3d 796, 797, 843 N.Y.S.2d 394;  People v. Owens, 43 A.D.3d 1185, 1186-1187, 842 N.Y.S.2d 94).

 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 with respect to the convictions of burglary in the first degree, robbery in the second degree, and assault in the third degree.   The People presented sufficient evidence that the victim suffered substantial pain and that the defendant's motive was to inflict such pain.   Thus, the People established the element of physical injury beyond a reasonable doubt (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039;  People v. Gomez, 43 A.D.3d 763, 763-764, 842 N.Y.S.2d 21;  People v. Krotoszynski, 43 A.D.3d 450, 452-453, 840 N.Y.S.2d 627;  People v. Berry, 273 A.D.2d 120, 121, 709 N.Y.S.2d 554;  People v. Dailey, 222 A.D.2d 278, 279, 650 N.Y.S.2d 637;  People v. Fields, 118 A.D.2d 725, 726, 500 N.Y.S.2d 58;  cf. People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270;  People v. Briggs, 285 A.D.2d 651, 652, 728 N.Y.S.2d 763;  People v. Barnes, 261 A.D.2d 409, 410, 690 N.Y.S.2d 70;   People v. Estes, 131 A.D.2d 872, 517 N.Y.S.2d 230).

The sentence imposed was not excessive (see People v. Hobson, 43 A.D.3d 1179, 1180, 843 N.Y.S.2d 146;  People v. Suitte, 90 A.D.2d 80, 86-89, 455 N.Y.S.2d 675).

Copied to clipboard