PEOPLE v. BYNUM

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

The PEOPLE, etc., Respondent, v. Gregory BYNUM, Appellant.

2014–05887

Decided: April 24, 2019

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ. Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that his decision to waive his right to counsel and to proceed pro se was unequivocal, knowing, voluntary, and intelligent (see People v. Silburn, 31 N.Y.3d 144, 150, 74 N.Y.S.3d 781, 98 N.E.3d 696;  People v. Crampe, 17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 957 N.E.2d 255;  People v. Morrow, 143 A.D.3d 919, 39 N.Y.S.3d 232).  The Supreme Court conducted the requisite “searching inquiry” (People v. Silburn, 31 N.Y.3d at 150, 74 N.Y.S.3d 781, 98 N.E.3d 696) and “warned [the] defendant forcefully that he did not have the training or knowledge to defend himself, that others who had done so had been unsuccessful and that if he insisted upon appearing pro se he would be held to the same standards of procedure as would an attorney” (People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254;  see People v. Andrades, 4 N.Y.3d 355, 359 n 2, 795 N.Y.S.2d 497, 828 N.E.2d 599).

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.

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, 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, 410, 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 reviewing the record here, 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).

“ ‘Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others’ ” (People v. Charles, 61 N.Y.2d 321, 327–328, 473 N.Y.S.2d 941, 462 N.E.2d 118, quoting People v. Nicholas, 35 A.D.2d 18, 20, 312 N.Y.S.2d 645;  see People v. Flanders, 25 N.Y.3d 997, 1000, 10 N.Y.S.3d 169, 32 N.E.3d 384;  People v. Newell, 148 A.D.3d 1216, 1222, 48 N.Y.S.3d 800).  Therefore, where “ ‘the indictment charge[s] more than the People [are] required to prove under the statute,’ ” they are not required to prove that the defendant committed each of the charged acts (People v. Flanders, 25 N.Y.3d at 1000, 10 N.Y.S.3d 169, 32 N.E.3d 384, quoting People v. Charles, 61 N.Y.2d at 327, 473 N.Y.S.2d 941, 462 N.E.2d 118;  see People v. Arroyo, 124 A.D.2d 806, 508 N.Y.S.2d 529).  Accordingly, the fact that the indictment charged the defendant with committing burglary in the third degree by both unlawfully entering and remaining in the subject premises did not require the People to prove both sets of facts and, since they proceeded only on the theory of unlawful entry, the Supreme Court properly instructed the jury on that theory only.

The defendant's contentions that the prosecutor's summation remarks were improper are largely unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Wisdom, 164 A.D.3d 928, 930, 82 N.Y.S.3d 97;  People v. Herrera, 161 A.D.3d 1006, 77 N.Y.S.3d 510).  In any event, it was proper for the prosecutor to make record-based arguments, addressed to the jury's common sense, concerning motives or lack of motives to falsify and regarding the defendant's credibility since the issue of credibility was central to the trial (see People v. Morrow, 143 A.D.3d at 921, 39 N.Y.S.3d 232;  People v. Bryant, 294 A.D.2d 221, 741 N.Y.S.2d 854;  People v. Banks, 258 A.D.2d 525, 526, 685 N.Y.S.2d 262).  While the prosecutor made isolated comments which misstated the evidence, the Supreme Court's repeated instructions to the jury that it was their recollection of the evidence which controlled were sufficient to dispel any prejudice (see People v. Williams, 29 N.Y.3d 84, 89, 52 N.Y.S.3d 266, 74 N.E.3d 649;  People v. Morrow, 143 A.D.3d at 921, 39 N.Y.S.3d 232;  People v. Sylvain, 33 A.D.3d 330, 331–332, 821 N.Y.S.2d 588).

MASTRO, J.P., ROMAN, HINDS–RADIX and MALTESE, JJ., concur.

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