People v. Horton

• Decision Date: 30 December 2010
• Citation: 913 N.Y.S.2d 463,79 A.D.3d 1614
• Parties: The PEOPLE of the State of New York, Respondent, v. Darius L. HORTON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 463

79 A.D.3d 1614

The PEOPLE of the State of New York, Respondent,

v.Darius L. HORTON, Defendant-Appellant.

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

Dec. 30, 2010.

Mark D. Funk, Rochester, for Defendant-Appellant.

Darius L. Horton, Defendant-Appellant Pro Se.

Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND GREEN, JJ.

MEMORANDUM:

On appeal from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that the verdict is against the weight of the evidence. We reject that contention. Defendant was identified at trial by the victim, who had observed defendant on two occasions prior to the assault. "[T]hose who see and hear the witnesses can assess their credibility and reliability in a manner thatis far superior to that of reviewing judges who must rely on the printed record" ( People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61), and it cannot be said in this case that the jury failed to give the evidence the weight it should be accorded ( see People v. Hill, 74 A.D.3d 1782, 902 N.Y.S.2d 755, lv. denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899). Thus, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant failed to preserve for our review his contention that County Court erred in denying his challenge for cause to a prospective juror on the ground that she raised her hand when asked by defense counsel whether anyone on the panel would have "a problem" if defendant elected to exercise his right to remain silent and not testify at trial ( see CPL 470.05[2] ). Defendant challenged that prospective juror for cause on another ground, i.e., based on comments that she made about defendant's custodial status, and we decline to exercise our power to address defendant's contention concerning the prospective juror's "problem" in the event that defendant did not testify as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). We reject the further contention of defendant that the court erred in denying his challenge for cause to the prospective juror based upon the concerns that she expressed with regard to his custodial status. Even assuming, arguendo, that the prospective juror's concerns initially "cast serious doubt on [her] ability to render an impartial verdict" ( People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846), we conclude that the record establishes that the court thereafter obtained from the prospective juror the requisite "unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence" ( People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932).

Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct ( see People v. McMillan, 234 A.D.2d 1006, 652 N.Y.S.2d 918, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316) and, in any event, that contention lacks merit. Although we agree with defendant that certain of the prosecutor's remarks may have exceeded the bounds of legitimate advocacy, we conclude that they were not so egregious as to deprive defendant of a fair trial ( see id.; People v. Pennington, 217 A.D.2d 919, 629 N.Y.S.2d 928, lv. denied 87 N.Y.2d 906, 641 N.Y.S.2d 235, 663 N.E.2d 1265).

We reject the contention of defendant in his main brief and pro se supplemental brief that he was denied effective assistance of counsel. Although defendant contends that defense counsel did not adequately impeach the victim on cross-examination with prior inconsistent statements, we note that he called as witnesses all of the individuals to whom the prior inconsistent statements were made, and...