People v. Gross

• Decision Date: 18 October 2011
• Citation: 2011 N.Y. Slip Op. 07446,88 A.D.3d 905,931 N.Y.S.2d 129
• Parties: The PEOPLE, etc., respondent,v.James GROSS, appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 905

931 N.Y.S.2d 129

2011 N.Y. Slip Op. 07446

The PEOPLE, etc., respondent,

v.James GROSS, appellant.

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

Oct. 18, 2011.

Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered July 24, 2009, convicting him of robbery in the first degree, robbery in the second degree (two counts), and robbery in the third degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The County Court providently exercised its discretion in making its Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413), and the defendant was not deprived of a fair trial thereby. The ruling, inter alia, permitted the People to ask the defendant about a prior felony conviction and the sentence imposed thereon. The County Court struck an appropriate balance between the probative value of the underlying facts of the defendant's prior crime and the possible prejudice to him ( see People v. Gray, 84 N.Y.2d 709, 712–713, 622 N.Y.S.2d 223, 646 N.E.2d 444; People v. Quiles, 84 A.D.3d 1415, 923 N.Y.S.2d 889; People v. Allan, 41 A.D.3d 727, 839 N.Y.S.2d 771). Moreover, where, as here, a defendant testifies about another prior conviction that the court, by its Sandoval ruling, had precluded, the defendant “ ‘opens the door’ on the issue in question, and ‘is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence’ ” ( People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293, quoting People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41; see People v. Cooper, 92 N.Y.2d 968, 683 N.Y.S.2d 757, 706 N.E.2d 745).

The defendant's contention that he was entitled to an instruction on the affirmative defense of duress ( see Penal Law § 40.00[1] ) is unpreserved for appellate review, as the defendant did not request such an instruction at trial ( see CPL 470.05[2] ). In any event, the defendant's contention is without merit where, as here, the defendant denied any involvement in the subject robberies.

The defendant's challenge to certain remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant failed to object to the challenged remarks at trial ( see CPL 470.05[2]; People v. James, 72 A.D.3d 844, 845, 898 N.Y.S.2d 635; People v. Wilson, 71 A.D.3d 799, 800, 896 N.Y.S.2d 419). In any event, the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, permissible rhetorical comment, or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Ariza, 77 A.D.3d 844, 846, 909 N.Y.S.2d 148; People v. Torres, 72 A.D.3d 709, 900 N.Y.S.2d 89).

The defendant's contention that the evidence was legally insufficient to support his conviction is without merit. 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. 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 fact-finder'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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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 (...