People v. Mason

• Citation: 170 A.D.2d 464,565 N.Y.S.2d 552
• Parties: The PEOPLE, etc., Respondent, v. Terrence MASON, Appellant.
• Decision Date: 04 February 1991
• Court: New York Supreme Court Appellate Division

Page 552

565 N.Y.S.2d 552

170 A.D.2d 464

The PEOPLE, etc., Respondent, v. Terrence MASON, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 4, 1991.

Philip L. Weinstein, New York City (Hilary Lamberton, of counsel), for appellant.

Terrence Mason, pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Bill Gianaris, of counsel), for respondent.

Before MANGANO, P.J., and EIBER, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

On the court's own motion, it is,

ORDERED that the decision and order of this court, dated December 31, 1990, is recalled and vacated, and the following decision and order is substituted therefor:

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered July 6, 1987, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the instant appeal, the defendant argues that his constitutional right to confront his accusers was infringed when the trial court permitted the investigating detective to testify that the defendant had been arrested after being implicated by a codefendant who did not testify at trial. However, this argument was not preserved for appellate review (see, CPL 470.05[2]; People v. Caldwell, 147 A.D.2d 581, 537 N.Y.S.2d 874; People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847) and, in any event, any error in this regard was harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787) in view of the overwhelming evidence of guilt ( see, People v. Grant, 133 A.D.2d 466, 519 N.Y.S.2d 682; People v. Dubois, 137 A.D.2d 706, 524 N.Y.S.2d 795).

The defendant also argues that he was deprived of a fair trial by the statements of the prosecutor during summation. We disagree. The defendant has not preserved this issue for appellate review (see, CPL 470.05[2]; People v. Coker, 135 A.D.2d 723, 522 N.Y.S.2d 624). In any event, the prosecutor's statements constituted a fair response to the defense summation which impugned the credibility of the prosecution's witnesses (see, People v. Rawlings, 144 A.D.2d 500, 533 N.Y.S.2d 1001; People v. Crawford, 130 A.D.2d 678, 515 N.Y.S.2d 604).

The defendant's remaining arguments, including those raised in his supplemental pro se brief, are either unpreserved for appellate review (see, CPL 470.05[2] or without merit (see, People v. Graziano, 151 A.D.2d 775, ...