People v. MitchellPeople v. Mitchell
During the early morning hours of December 15, 2005, Jenni Pomeroy and Tarence Williams were asleep in the home that they shared with their child when they were suddenly awoken by a man wielding a handgun and demanding money. Pomeroy was able, during the course of the confrontation, to leave the bedroom, close herself in a bathroom and, after hearing the intruder leave the residence, dial 911. During the call, she identified defendant as the intruder and later alleged that, during the course of the encounter, he took from the aрartment a safe and two cellular phones. Pomeroy and Williams were interviewed at the police station and, after viewing a photographic array, identified defendant—an individual who each knew prior to the incident—as the intruder. About one month later, defendant was arrested after he was found hiding in the trunk of his girlfriend‘s automobile.
Defendant was indicted for the crimes of burglary in the first degree (two counts), robbery in the first degree and petit larceny. When defendant moved to dismiss the indictment on the ground that it was based upon legally insufficient evidence, County Court conducted an inspection of the grand jury minutes and denied the motion. County Court also denied defendant‘s motion to suppress any in court identification of him by the victims based upon defendant‘s contention that the police employed suggestive tactics while showing the victims a photographic array of potential suspects, including a photograph of defendant, on the night of the incidеnt. After trial, defendant was convicted
Defendant initially argues that County Court erred by denying his motion to dismiss the counts in the indictment that charged him with burglary in the first degree (see
Defendant also alleges thаt the People committed misconduct before the grand jury by questioning him and another witness about defendant‘s alleged involvement in gang activity. While the People‘s cross-examination of defendant in this regard had little or no relevance to the issues raised during that presentation, it does not appear that such questioning resulted in any meaningful prejudice to defendant or impaired the integrity of the grand jury‘s proceedings (see
Defendant also challenges his conviction for burglary in the second degree as against the weight of the credible evidence.
In addition, defendant presented evidence at trial to the effect that he was staying at a friend‘s house watching her children when the crimes alleged in the indictment were committed. While this witness acknowledged being with defendant, she could not confirm that they were together at the specific time and date that the crimes in question were being committed.
Taking the evidence introduced at trial as a whole, and giving “great deferencе to the jury‘s observations of the witnesses and their demeanor, and the resulting credibility determinations,” we cannot conclude that defendant‘s conviction for burglаry in the second degree was against the weight of the credible evidence (People v Walton, 16 AD3d 903, 904 [2005], lv denied 5 NY3d 796 [2005]; see People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lv denied 8 NY3d 946 [2007]; People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]; see also People v Robinson, 53 AD3d 681, 682 [2008]; People v Damphier, 51 AD3d 1146, 1147-1148 [2008]; People v Winchell, 46 AD3d 1096, 1097 [2007], lv denied 10 NY3d 818 [2008]).
Defendant also alleges that during the trial, the prosecutor committed numerous instances of misconduct that served to profoundly prejudice him and deny him a fair trial. Specifically, defendant points to statements made by the prosеcutor during the voir dire of the jury pool that the victims had prior criminal records and asked members of the jury pool to, in effect, put themselves in their place and assume that they had been the victim of such a crime. Initially, it is noted that in each instance, County Court sustained defendant‘s objections to this line of
Nor do we find merit to defendant‘s claim that he was deprived of a fair trial by comments made by the Assistant District Attorney during his summation. While these statements would have been better left unsaid, they did not, given the full context of the prosecutor‘s closing arguments, go “beyond the bounds of fair commentary” (People v Silvestri, 34 AD3d 986, 987 [2006]; see People v Westervelt, 47 AD3d 969, 974 [2008], lv denied 10 NY3d 818 [2008]), and did not serve to deprive defendant of a fair trial (see People v Clark, 52 AD3d 860, 863 [2008]; People v Anderson, 48 AD3d 896, 897 [2008], lv denied 10 NY3d 859 [2008]).
Defendant next complains about the testimony of Gerald Schatzel, a police detective, to the effect that after Pomeroy and Williams had implicated defendant, “he prepared a photo-[graphic] identification.” Defense counsel immediately objected and moved for a mistrial. County Court denied defendant‘s motion for a mistrial, but directed that the People no longer pursue that line of questioning. Since no evidence was introduced that defendant‘s picture was part of this photographic array, this reference, while improper, constituted harmless error (see People v Williams, 11 AD3d 810, 811-812 [2004], lv denied 4 NY3d 769 [2005]; People v Mosley, 296 AD2d 595, 596 [2002]).
Finally, we are unpersuaded that a 10-year prison sentence is harsh and excessive. Taking into consideration the nature of the crime for which defendant stands convicted, as well as his prior criminal record, which includes а sentence of probation with numerous violations, we find neither an abuse of discretion by County Court nor the existence of any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Rivera, 301 AD2d 787, 790 [2003], lv denied 99 NY2d 631 [2003]).
Cardona, P.J., Peters, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.