People v. Gomez

Apr 20, 2016
2014-06459
Versions:138 A.D.3d 1017
30 N.Y.S.3d 234
2016 NY Slip Op 03010

Ordered that the judgment is affirmed.

The defendant‘s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Guzman, 134 AD3d 852, 853 [2015]; People v Mazyck, 118 AD3d 728, 728 [2014]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant‘s guilt beyond a reasonable doubt. Contrary to the defendant‘s contention, the testimony of the main prosecution witness was not incredible as a matter of law (see People v McClough, 135 AD3d 880 [2016]; People v Davis, 299 AD2d 420, 422 [2002]). 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 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). 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 NY3d 633 [2006]).

The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial by the prosecutor‘s alleged violation of the County Court‘s Molineux ruling (see People v Molineux, 168 NY 264 [1901]; People v Laverpool, 52 AD3d 622, 623 [2008]; People v Olibencia, 45 AD3d 607, 609 [2007]; People v Ingram, 258 AD2d 533 [1999]). In any event, the prosecutor did not violate the court‘s Molineux ruling (see People v Rock, 65 AD3d 558, 559 [2009]). In addition, the defendant did not object to the Molineux charge as given, and thus his claim that the charge was inadequate is unpreserved for appellate review (see CPL 470.05 [2]; People v Dei, 2 AD3d 1459, 1460 [2003]), and, in any event, without merit.

The County Court properly denied the defendant‘s application for a missing witness charge regarding a New York State Police investigator. A party seeking a missing witness charge “must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party” (People v Macana, 84 NY2d 173, 177 [1994]). Here, the defendant failed to make a prima facie showing that the uncalled witness could be expected to have knowledge about a material issue in the case or that his testimony would be favorable to the People (see People v Salmon, 291 AD2d 512, 512-513 [2002]; People v Moore, 268 AD2d 491 [2000]).

The defendant‘s contentions that the County Court committed reversible error when it referred a witness‘s accomplice status to the jury for resolution as a question of fact, and that the prosecution failed to present sufficient nonaccomplice testimony to corroborate the witness‘s testimony, are unpreserved for appellate review (see CPL 470.05 [2]; People v Argentina, 27 AD3d 569, 570 [2006]; People v Roque, 291 AD2d 417 [2002]). In any event, the court properly instructed the jury that the issue of whether the witness was an accomplice was a question of fact, inasmuch as competing inferences regarding his complicity could reasonably have been drawn from the evidence adduced at the trial (see People v Visich, 57 AD3d 804, 806 [2008]).

The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial due to remarks the prosecutor made on summation (see CPL 470.05 [2]). In any event, the challenged remarks either constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v Patterson, 121 AD2d 406 [1986]), were within the broad bounds of rhetorical comment permissible in closing arguments and constituted fair response to arguments made by defense counsel in summation (see People v Rios, 105 AD3d 873 [2013]), or were not so derogatory as to deprive the defendant of a fair trial (see People v Tavarez, 135 AD3d 973 [2016]; People v Caba, 101 AD3d 896 [2012]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.