People v. Moore

• Decision Date: 23 February 2012
• Citation: 938 N.Y.S.2d 552,2012 N.Y. Slip Op. 01349,92 A.D.3d 575
• Parties: The PEOPLE of the State of New York, Respondent, v. Derek MOORE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01349

92 A.D.3d 575

938 N.Y.S.2d 552

The PEOPLE of the State of New York, Respondent,

v.Derek MOORE, Defendant–Appellant.

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

Feb. 23, 2012.

Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for respondent.

MAZZARELLI, J.P., CATTERSON, RENWICK, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 14, 2009, as amended March 5, 2009, convicting defendant, after a jury trial, of kidnapping in the second degree (two counts), coercion in the first degree (five counts), criminal possession of a weapon in the third degree (three counts), reckless endangerment in the first degree (two counts), intimidating a witness in the third degree, assault in the second degree and unlawful imprisonment in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 18 years, unanimously affirmed.

Defendant challenges the sufficiency of the evidence as to several of his convictions. However, defendant did not alert the trial court to the specific arguments he makes on appeal. Accordingly, these claims are unpreserved ( see People v. Gray, 86 N.Y.2d 10, 20–22, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and we decline to review them in the interest of justice. As an alternative holding, we reject defendant's sufficiency claims on the merits. We further find that the verdict was not against the weight of the evidence in any respect ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

The evidence satisfied the abduction element of kidnapping. The jury could have reasonably inferred that when defendant tied up and gagged the victim, defendant restrained her “with intent to prevent [her] liberation by ... using or threatening to use deadly physical force” (Penal Law § 135.00[2][b] ). The manner in which defendant gagged the victim was readily capable of causing death by asphyxiation. The evidence supported an inference that when defendant gagged the victim, he intended, among other things, to prevent her from calling for help. The evidence also supported the physical injury element of the assault conviction and the grave risk of death element of the reckless endangerment convictions.

The prosecutor's summation remark that the victim had told the jury “what exactly had happened” did not constitute improper vouching, when viewed in context. Instead, it was a permissible response to the defense summation, which attacked the victim's credibility ( see People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). The prosecutor's attacks on the credibility of defendant's sister's testimony were likewise permissible ( id. at 143–144, 666 N.Y.S.2d 572). Defendant did not preserve any of his remaining challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.

The court provided the jury with...