PEOPLE v. WILLIAMS

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

The PEOPLE, etc., respondent, v. Torin WILLIAMS, appellant.

Decided: March 27, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and MARK C. DILLON, JJ. Alvin L. Spitzer, New City, N.Y., for appellant. Michael E. Bongiorno, District Attorney, New City, N.Y. (Stephanie A. Small of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered March 4, 2003, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant's warrantless arrest inside a house was justified under the exigent circumstances exception to the Payton rule (see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;  People v. Scott, 6 A.D.3d 465, 774 N.Y.S.2d 349).

 To the extent that the defendant argues that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, the issue is unpreserved for appellate review, since the defense counsel made only a general motion to dismiss at the close of the People's case (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Anthony, 21 A.D.3d 903, 903-904, 800 N.Y.S.2d 625). In any event, viewing the evidence 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), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Gonzalez, 193 A.D.2d 360, 361, 597 N.Y.S.2d 44).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt 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 failure to raise an objection to the remarks made by the prosecutor on summation renders the defendant's claim that he was denied his right to a fair trial unpreserved for appellate review (see CPL 470.05[2];  People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614).   In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), or harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The failure to either request specific instructions with regard to a jury charge or to timely object to the charge as given renders the defendant's claim that he was denied his right to a fair trial as a result of the court's instruction unpreserved for appellate review (see CPL 470.05[2];  People v. Edwards, 292 A.D.2d 393, 394, 738 N.Y.S.2d 687).   In any event, when considered as a whole, the charge sufficiently conveyed the correct standard (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134).

The defendant's claim that he was denied the effective assistance of counsel is without merit (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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