People v. Wilson

• Citation: 908 N.Y.S.2d 885,77 A.D.3d 858
• Parties: The PEOPLE, etc., respondent, v. John WILSON, appellant.
• Decision Date: 19 October 2010
• Court: New York Supreme Court Appellate Division

908 N.Y.S.2d 885 77 A.D.3d 858 The PEOPLE, etc., respondent, v. John WILSON, appellant. Supreme Court, Appellate Division, Second Department, New York. Oct. 19, 2010.

Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Brooke E. Barnes of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered May 21, 2008,convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contentions that he was deprived of a fair trial as a result of improper cross-examination and summation remarks made by the prosecutor are without merit. The defendant "opened the door" to questions with respect to his prior conviction of criminal sale of a controlled substance by testifying that he had never sold drugs ( People v. Jones, 278 A.D.2d 246, 248, 717 N.Y.S.2d 270, citing People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41; see People v. Thomas, 47 A.D.3d 850, 851, 850 N.Y.S.2d 530; People v. Marable, 33 A.D.3d 723, 725, 826 N.Y.S.2d 273). Furthermore, the challenged comments in the prosecutor's summation regarding the defendant's credibility constituted fair comment on the evidence ( see People v. Murphy, 178 A.D.2d 615, 578 N.Y.S.2d 846; People v. Merchant,150 A.D.2d 730, 731, 541 N.Y.S.2d 599). In addition, the prosecutor's comment that the defendant had the benefit of hearing the prosecution's witnesses and reviewing the police paperwork before testifying was permissible ( see Portuondo v. Agard, 529 U.S. 61, 67-68, 120 S.Ct. 1119, 146 L.Ed.2d 47; People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305; People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127; People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334; People v. Lowery, 281 A.D.2d 491, 491-492, 721 N.Y.S.2d 775).

The defendant's contention that he was deprived of the effective assistance of counsel is without merit ( see generally People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. James, 72 A.D.3d 844, 898 N.Y.S.2d 635).

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

DILLON,...