People v. Kowlessar

• Decision Date: 01 March 2011
• Citation: 82 A.D.3d 417,918 N.Y.S.2d 41
• Parties: The PEOPLE of the State of New York, Respondent, v. Mohan KOWLESSAR, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 41
82 A.D.3d 417

The PEOPLE of the State of New York, Respondent,
v.
Mohan KOWLESSAR, Defendant-Appellant.

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

March 1, 2011.

918 N.Y.S.2d 42

Sullivan & Brill, LLP, New York (Steven Brill of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MANZANET-DANIELS, ROMÁN, JJ.

82 A.D.3d 417

Judgment, Supreme Court, Bronx County (John Carter, J.), rendered March 19, 2009, convicting defendant, after a jury trial, of four counts of sexual abuse in the first degree, and sentencing him to an aggregate term of 12 years, unanimously affirmed.

Defendant's arguments concerning the People's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The prosecutor had a sufficient basis on which to comment on defendant's failure to call his brother to corroborate his own testimony, and this comment did not improperly shift the burden of proof. Defendant's brother was an available and presumably favorable witness who could have provided material, noncumulative testimony ( see People v. Cochran, 29 A.D.3d 365, 814 N.Y.S.2d 160 [2006], lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 816, 854 N.E.2d 1280 [2006] ). The remaining summation remarks challenged on appeal were permissible comments on the evidence and responses to the defendant's summation ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied

82 A.D.3d 418

91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992]; People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant did not preserve his challenge to the proficiency of the official court interpreter at trial who translated the victim's testimony, and we decline to review it in the interest of justice. As an alternative holding, we find the record establishes that the interpreter provided an adequate translation of the testimony. While there were occasional difficulties in translation, they were sufficiently rectified so that the victim's testimony was properly presented to the jury ( see e.g. People v. Watkins, 12 A.D.3d 165, 786 N.Y.S.2d 133 [2004], lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 [2005]; People v. Nedal, 198 A.D.2d 42, 603 N.Y.S.2d 454 [1993] ).