People v. Scott

• Citation: 951 N.Y.S.2d 893,99 A.D.3d 817,2012 N.Y. Slip Op. 06826
• Court: New York Supreme Court Appellate Division
• Decision Date: 10 October 2012
• Parties: The PEOPLE, etc., respondent, v. Stephen SCOTT, appellant.

99 A.D.3d 817
951 N.Y.S.2d 893
2012 N.Y. Slip Op. 06826

The PEOPLE, etc., respondent,
v.
Stephen SCOTT, appellant.

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

Oct. 10, 2012.

Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Jordan W. Rossman of counsel; James Tuomey on the brief), for respondent.

[99 A.D.3d 817]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered December 17, 2008, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention regarding allegedly improper comments made by the prosecutor during summation is not preserved for appellate review ( seeCPL 470.05[2] ), as the defendant either failed to object to the challenged comments or made only a general objection ( see People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017). In any event, the challenged remarks were not improper, since they constituted fair comment on the evidence, were a fair response to the defense summation ( see People v. Colon, 45 A.D.3d 776, 844 N.Y.S.2d 897;People v. Urena, 24 A.D.3d 693, 805 N.Y.S.2d 841), or were harmless, as the evidence of the defendant's [99 A.D.3d 818]guilt was overwhelming, and there is no significant probability that the allegedly improper comments contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contention, raised in his pro se supplemental brief, that the trial court erred in permitting the People to introduce expert testimony concerning the customs and practices of street gangs, is not preserved for appellate review (see CPL 470.05[2] ). In any event, under the circumstances of this case, the expert testimony was properly admitted as probative of the defendant's motive for shooting and killing the victim (see People v. Scott, 70 A.D.3d 977, 897 N.Y.S.2d 138;People v. Avila, 303 A.D.2d 165, 754 N.Y.S.2d 885).

DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.