People v. Maitland — 136 A.D.3d 1058

Majority

p. 1058

The People of the State of New York, Respondent, v Ikamel Maitland, Appellant.

[26 NYS3d 190]—

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Shillingford, J.), rendered June 13, 2013, convicting him of criminal possession of a weapon in the second degree, attempted assault in the second degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 , 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of each crime 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]; People v Bleakley, 69 NY2d 490 , 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt on each count was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Contrary to the defendant’s contention, the admission of the contents of a portion of the telephone call to the 911 emergency number made by the complainant was proper under the excited utterance exception to the hearsay rule. The surrounding circumstances, including that the call was made immediately after the complainant was shot at, supported the conclusion “that the remarks were not made under the impetus of studied reflection” (People v Melendez, 296 AD2d 424 , 425 [2002]; see People v Cantave, 21 NY3d 374 , 381 [2013]; People v Johnson, 1 NY3d 302 , 307-308 [2003]; People v Brown, 70 NY2d 513 , 519 [1987]; People v Edwards, 47 NY2d 493 , 499 [1979]; People v Reynolds, 83 AD3d 1098 , 1099 [2011]).

The defendant’s challenges to the prosecutor’s remarks during summation are largely unpreserved for appellate review,

p. 1059

because the defendant made no objection, made only a general objection, or made objections that were sustained without any further request for curative instructions, and were not the basis of his motion for a mistrial (see CPL 470.05 [2]; People v Romero, 7 NY3d 911 , 912 [2006]; People v Barton, 110 AD3d 1089 , 1090 [2013]; People v Hanson, 100 AD3d 771 , 772 [2012], revd on other grounds sub nom. People v Silva, 24 NY3d 294 [2014]; People v Read, 97 AD3d 702 , 703 [2012]). In any event, those remarks pertained to matters that could be fairly inferred from the evidence, and to the extent that some remarks were improper, they did not “rise to the level of egregious misconduct that would have deprived the defendant of a fair trial” (People v Mason, 132 AD3d 777 , 778 [2015]; see People v Cherry, 127 AD3d 879 , 880 [2015]; People v Wallace, 123 AD3d 1151 , 1152 [2014]). With regard to a reference by the prosecutor to prior incarceration, the objection to which is preserved, the Supreme Court gave a sufficient curative instruction, “and the jury is presumed to have followed it” (People v Ross, 262 AD2d 429 , 430 [1999]; see People v Hardy, 22 AD3d 679 , 680 [2005]).

Dillon, J.P., Cohen, Maltese and Barros, JJ., concur.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 at 621 p. 1058
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 p. 1058
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 1058
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 1058
People v. Melendez 296 AD2d 424 N.Y. App. Div. 2002-07-01 at 425 p. 1058
People v. Cantave 21 NY3d 374 N.Y. 2013-06-25 at 381 p. 1058
People v. Johnson 1 NY3d 302 N.Y. 2003-12-22 at 307-308 p. 1058
People v. Brown 70 NY2d 513 N.Y. 1987-11-19 at 519 p. 1058
People v. Edwards 47 NY2d 493 N.Y. 1979-07-03 at 499 p. 1058
People v. Reynolds 83 AD3d 1098 N.Y. App. Div. 2011-04-26 at 1099 p. 1058
People v. Barton 110 AD3d 1089 N.Y. App. Div. 2013-10-30 at 1090 p. 1059
People v. Hanson 100 AD3d 771 N.Y. App. Div. 2012-11-14 at 772 p. 1059
People v. Silva 24 NY3d 294 N.Y. 2014-11-24 p. 1059
People v. Read 97 AD3d 702 N.Y. App. Div. 2012-07-11 at 703 p. 1059
People v. Mason 132 AD3d 777 N.Y. App. Div. 2015-10-14 at 778 p. 1059
People v. Cherry 127 AD3d 879 N.Y. App. Div. 2015-04-08 at 880 p. 1059
People v. Wallace 123 AD3d 1151 N.Y. App. Div. 2014-12-31 at 1152 p. 1059
People v. Ross 262 AD2d 429 N.Y. App. Div. 1999-06-07 at 430 p. 1059