People v. Walker

• Decision Date: 27 February 2019
• Docket Number: Ind.No. 10342/14,2015–06259
• Citation: 92 N.Y.S.3d 894 (Mem),169 A.D.3d 1070
• Parties: The PEOPLE, etc., Respondent, v. Kenneth WALKER, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1070

92 N.Y.S.3d 894 (Mem)

The PEOPLE, etc., Respondent,

v.Kenneth WALKER, Appellant.

2015–06259

Ind.No. 10342/14

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

Argued–October 29, 2018

February 27, 2019

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Aurora Alvarez–Calderon of counsel), for respondent.

JOHN M. LEVENTHAL, J.P. ROBERT J. MILLER COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P. Griffin, J.), rendered June 12, 2015, convicting him of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's challenge to certain comments made by the prosecutor is only partially preserved for appellate review (see CPL 470.05[2] ). In any event, the challenged remarks either were fair comment on the evidence and the inferences to be drawn from the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), were fair response to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ), or were not so egregious as to have deprived the defendant of a fair trial (see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ).

The sentence imposed was not excessive (s...