People v. McDonald

Decision Date07 December 2010
Citation79 A.D.3d 771,911 N.Y.S.2d 908
PartiesThe PEOPLE, etc., respondent, v. Jerome McDONALD, appellant.
CourtNew York Supreme Court — Appellate Division

Lynn W.L. Fahey (Lee G. Dunst and Akiva Shapiro of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Ayelet Sela of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered May 14, 2004, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is without merit. Most of the challenged remarks were responsive to defense counsel's summation ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281; People v. Williams, 52 A.D.3d 851, 861 N.Y.S.2d 713; People v. Barnes, 33 A.D.3d 811, 826 N.Y.S.2d 283; People v. Farrell, 228 A.D.2d 693, 646 N.Y.S.2d 124; People v. Campbell, 228 A.D.2d 689, 646 N.Y.S.2d 129; People v. Jefferson, 136 A.D.2d 655, 657, 523 N.Y.S.2d 887). Although some of the comments made reference to matters outside the "four corners of the evidence" ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564), any prejudice that may have resulted therefrom was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury ( see People v. Wiggins, 31 A.D.3d 584, 817 N.Y.S.2d 670; People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 399). Moreover, although some of the challenged remarks improperly denigrated defense counsel ( see People v. Gordon, 50 A.D.3d 821, 822, 855 N.Y.S.2d 617; People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741; People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418; People v. Torres, 111 A.D.2d 885, 490 N.Y.S.2d 793), they did not deprive the defendant of a fair trial.

Furthermore, contrary to the defendant's contention, defense counsel's performance was not rendered ineffective because she failed to retain and call an expert witness on the topic of eyewitness identifications. Under the circumstances of this case, counsel's decision to attack the reliability of the eyewitness identification through cross-examination was a legitimate trial tactic which should not be second-guessed ( see People v. Daniels, 35 A.D.3d 495, 496, 826 N.Y.S.2d 369; People v. Baston, 181 A.D.2d 786, 787, 581 N.Y.S.2d 826; People v. Diaz, 131 A.D.2d 775, 517 N.Y.S.2d 66; cf. Matter of Stephone M.H., 11 A.D.3d 464, 465, 782 N.Y.S.2d 786).

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2 cases
  • People v. Martinez
    • United States
    • New York County Court
    • 4 de abril de 2023
    ... ... v. Thomas, 131 A.D.3d 551, 552 citing People v ... Caban, 5 N.Y.3d at 152; People v. Berroa, 99 ... N.Y.2d 134, 138-139 [2002]; People v. Benevento, 91 ... N.Y.2d 708, 712 [1998]; People v. Baldi, 54 N.Y.2d ... 137, 147 [1981]; People v. McDonald, 79 A.D.3d 771, ... 772 [2010]). It is uncontroverted that the defendant's ... crime was captured on video and was not defensible. Further, ... the defendant accepted an advantageous plea agreement, which ... kept him out of state prison and avoided a felony bail ... jumping charge. The ... ...
  • People v. Glashen
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    • New York Supreme Court — Appellate Division
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