People v. Mitchell

Dec 1, 2009
Versions:68 A.D.3d 784
890 N.Y.2d 585

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. 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 jury‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [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]).

While it was proper for the prosecutor to elicit testimony that the defendant attempted to procure a false alibi (see People v Moses, 63 NY2d 299, 308 [1984]), eliciting the witness‘s reason for agreeing to provide one was error (see People v Buzzi, 238 NY 390, 398-399 [1924]; cf. People v Myrick, 31 AD3d 668, 669 [2006]). However, such error was harmless, as there was overwhelming evidence of the defendant‘s guilt, and no significant probability that the error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Furthermore, the defendant‘s contention concerning a comment made by the prosecutor during summation is unpreserved for appellate review, as he raised only a general objection to the contested remark, failed to request curative instructions, and did not timely move for a mistrial on that ground (see CPL 470.05 [2]; People v Dashosh, 59 AD3d 731 [2009]; People v Miller, 57 AD3d 568 [2008]). In any event, the challenged portion of the prosecutor‘s summation constituted fair comment on, or reasonable inferences drawn from, the evidence (see People v Ashwal, 39 NY2d 105 [1976]; People v Hughley, 43 AD3d 1180 [2007]).

The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant‘s remaining contentions are unpreserved for appellate review and, in any event, are without merit. Skelos, J.P., Eng, Austin and Roman, JJ., concur.