People v. Jenkins

• Decision Date: 27 March 2012
• Citation: 2012 N.Y. Slip Op. 02321,940 N.Y.S.2d 874,93 A.D.3d 861
• Parties: The PEOPLE, etc., respondent, v. Andre JENKINS, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02321

93 A.D.3d 861

940 N.Y.S.2d 874

The PEOPLE, etc., respondent,

v.Andre JENKINS, appellant.

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

March 27, 2012.

Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa R. Marlow Wolland of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered October 3, 2005, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, 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), it was legally sufficient to establish his identity as the perpetrator ( see People v. Chase, 60 A.D.3d 1077, 1078, 876 N.Y.S.2d 485). Moreover, upon our independent review pursuant to 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; People v. Mills, 20 A.D.3d 779, 780, 798 N.Y.S.2d 595; cf. People v. Chase, 60 A.D.3d at 1078–1079, 876 N.Y.S.2d 485).

The defendant's contentions that the admission into evidence of a certain statement a nontestifying codefendant made to the police violated his Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, are unpreserved for appellate review ( see CPL 470.15; People v. Reid, 71 A.D.3d 699, 699–700, 894 N.Y.S.2d 905) and, in any event, without merit ( see Crawford v. Washington, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456; People v. Mack, 89 A.D.3d 864, 865–866, 932 N.Y.S.2d 163; People v. Reyes, 49 A.D.3d 565, 566, 855 N.Y.S.2d 160; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657; People v. Melendez, 285 A.D.2d 819, 821–822, 727 N.Y.S.2d 773; People v. Johnson, 224 A.D.2d 635, 638, 639 N.Y.S.2d 409; People v. Davis, 168 A.D.2d 565, 565, 563 N.Y.S.2d 665).

The defendant's contention that certain allegedly improper comments made by the prosecutor during his summation deprived the defendant of his right to a fair trial is largely unpreserved for appellate review ( see CPL 470.05[2]; People v. Osorio, 49 A.D.3d 562, 563–564, 855 N.Y.S.2d 163). In any event, for the most part, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the summation of defense counsel or the codefendant's counsel ( see People v. Dorgan, 42 A.D.3d 505, 505, 838 N.Y.S.2d 787; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57; People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714; People v. Vaughn, 209 A.D.2d 459, 460, 619 N.Y.S.2d 573; People v. Holder, 203 A.D.2d 382, 383, 610 N.Y.S.2d 541; People v. Anderson, 154 A.D.2d 607, 607, 546 N.Y.S.2d 435; People v. Geddes, 134 A.D.2d 279, 280, 520 N.Y.S.2d 608; cf. People v. Smith, 288 A.D.2d 496, 497, 733 N.Y.S.2d 237). To the extent that some of the comments were improper, they were sufficiently addressed by the trial court's instructions to the jury ( see People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244; People v. Brown, 272 A.D.2d 338, 339, 708 N.Y.S.2d 302) and, in any event, “ were not so flagrant or pervasive as to deny the defendant a fair trial” ( People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95; see People v. Svanberg, 293 A.D.2d 555, 555, 739 N.Y.S.2d 837).

The defendant's contention that he did not receive the effective assistance of counsel is without merit ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; see also People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213).

DILLON, J.P., FLORIO, AUSTIN and ROMAN, JJ., concur.