People v. Elder, 2015-01231, Ind. No. 1196/14.

• Decision Date: 26 July 2017
• Docket Number: 2015-01231, Ind. No. 1196/14.
• Citation: 152 A.D.3d 787,59 N.Y.S.3d 134
• Parties: The PEOPLE, etc., respondent, v. Corey ELDER, appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 787

59 N.Y.S.3d 134

The PEOPLE, etc., respondent,

v.Corey ELDER, appellant.

2015-01231, Ind. No. 1196/14.

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

July 26, 2017.

Lynn W.L. Fahey, New York, NY (Meredith S. Holt of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Amy Markel of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered January 15, 2015, convicting him of criminal possession of stolen property in the fourth degree and unauthorized use of a motor vehicle in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of criminal possession of stolen property in the fourth degree (see Penal Law § 165.45[5] ) and unauthorized use of a motor vehicle in the third degree (see Penal Law § 165.05[1] ) for possessing the complainant's minivan.

The defendant's arguments regarding the legal sufficiency of the evidence are unpreserved for appellate review, except to the extent that he contends that there was insufficient evidence of the knowledge element of the crimes (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). 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. Moreover, 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, 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 ).

The defendant's contention that he was deprived of a fair trial by the prosecutor's misstatement, during summation, of the law concerning the knowledge element of criminal possession of stolen property in the fourth degree is unpreserved for appellate review, since the defendant did not object to the remarks (see People v. Giuca, 58 A.D.3d 750, 751, 871 N.Y.S.2d 709 ). In any event, the defendant's contention is without merit. Those remarks, and the reference by the prosecutor to the jury's function, the objection to which is preserved for appellate review, could not have been interpreted by the jury as an instruction on the law, because the Supreme Court repeatedly advised the jurors that it would instruct them on the law and subsequently gave correct instructions on the law (see People v. Labossiere, 148 A.D.3d 1183, 1184, 50 N.Y.S.3d 513 ; People v. Giuca, 58 A.D.3d at 751, 871 N.Y.S.2d 709 ).

Moreover, contrary to the defendant's contention, the prosecutor's reference to a credit card recovered from the vehicle did not violate an evidentiary ruling. In any event, any prejudice resulting from the remark was alleviated by the Supreme Court's actions in immediately striking the comment from the record and providing curative instructions to the jury, which instructions the jury is presumed to have followed (see People v. Macaluso, 144 A.D.3d 947, 947, 41 N.Y.S.3d 122 ; People v. Maitland, 136 A.D.3d 1058, 1059, 26 N.Y.S.3d 190 ).

The defendant's remaining challenges to remarks made by the prosecutor during his opening statement and summation are unpreserved for appellate review, since the defendant either failed to object to the remarks at issue, or made only general objections (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Baez, 137 A.D.3d 805, 805, 27 N.Y.S.3d 161 ). In any event, the majority of the summation comments were either within the bounds of rhetorical comment permissible in closing argument, fair response to arguments made by defense counsel in summation, or fair comment on the evidence and reasonable inferences to be drawn therefrom (see People v. Morrow, 143 A.D.3d 919, 921, 39 N.Y.S.3d 232 ; People v. Young, 141 A.D.3d 551, 552, 35 N.Y.S.3d 248 ; People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771 ). Although the prosecutor vouched in the summation for the credibility of a police witness based on his position as a police officer (see People v. Cantoni, 140 A.D.3d 782, 787, 34 N.Y.S.3d 454 ; People v. Mehmood, 112 A.D.3d 850, 853, 977 N.Y.S.2d 78 ), and improperly suggested in his opening statement that the indictment constituted evidence of the defendant's guilt (see People v. Liverpool, 35 A.D.3d 506, 506, 825 N.Y.S.2d 708 ; People v. Logan, 221 A.D.2d 662, 663, 635 N.Y.S.2d 508 ), those comments were either sufficiently addressed by the Supreme Court's instructions to the jury or not so egregious as to have deprived the defendant of a fair trial (see People v. Labossiere, 148 A.D.3d at 1185, 50 N.Y.S.3d 513 ; People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ; People v. Branch, 63 A.D.3d 631, 632, 882 N.Y.S.2d 411 ; People v. Logan, 221 A.D.2d at 663, 635 N.Y.S.2d 508 ).

The defendant's contention that the Supreme Court failed to adequately instruct the jury as to reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Robinson, 88 N.Y.2d 1001, 1001–1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266 ). In any event, the defendant's contention is without merit because the jury instructions,...