People v. Washington

• Decision Date: 28 May 2014
• Citation: 117 A.D.3d 1091,986 N.Y.S.2d 230,2014 N.Y. Slip Op. 03873
• Parties: The PEOPLE, etc., respondent, v. Jarelle WASHINGTON, appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1091

986 N.Y.S.2d 230

2014 N.Y. Slip Op. 03873

The PEOPLE, etc., respondent,

v.Jarelle WASHINGTON, appellant.

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

May 28, 2014.

Amelia P. Marino, New York, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Marie John–Drigo of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered December 8, 2010, convicting him of murder in the second degree and attempted murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we 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, 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 find 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;People v. Parks, 67 A.D.3d 931, 889 N.Y.S.2d 620).

The defendant's contention that he was deprived of a fair trial because the prosecutor made improper comments during summation is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawley, 112 A.D.3d 968, 977 N.Y.S.2d 391;People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137). In any event, the comments were fair comment on the evidence and the reasonable inferences to be drawn therefrom, responsive to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial ( see People v. Hawley, 112 A.D.3d 968, 977 N.Y.S.2d 391;People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137;cf. People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

The defendant failed to preserve for appellate review the issue of whether the Supreme Court properly charged the jury on the People's burden of proving his guilt beyond a reasonable doubt ( seeCPL 470.05[2]; People v. Sanchez, 29 A.D.3d 608, 813 N.Y.S.2d 307;People v. McAloney, 2 A.D.3d 538, 539, 767 N.Y.S.2d 914). In any event, the jury charge as a whole correctly explained the concept of reasonable doubt to the jury and adequately apprised the jury of the proper standard of proof to apply to the evidence before it ( see People v. Blackshear, 112 A.D.2d 1044, 1045–1046, 493 N.Y.S.2d 32;People v. Sanchez, 29 A.D.3d at 608, 813 N.Y.S.2d 307).

There is no merit to the defendant's claim that defense counsel's failure to object to the challenged summation comments to the jury charges and to certain testimony deprived him of his right to the effective assistance of counsel ( see People v. Flores, 84...