People v. Jean-Marie — 67 A.D.3d 704

Majority

p. 704

The People of the State of New York, Respondent, v Starland Jean-Marie, Appellant.

[888 NYS2d 154]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered August 14, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s challenge to the legal sufficiency of the identification evidence is unpreserved for appellate review (see

p. 705

CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 , 492 [2008]; People v Finger, 95 NY2d 894 , 895 [2000]; People v Roberts, 64 AD3d 796 [2009]; People v Arias, 64 AD3d 786 [2009]). 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. 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 , 348-349 [2007]; People v Alexis, 65 AD3d 1160 [2009]), 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]; People v David, 65 AD3d 1163 [2009]; People v Silberzweig, 58 AD3d 762 [2009], lv denied 12 NY3d 920 [2009]). 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 discrepancies and inconsistencies between the identification testimony of the complainant and statements in the police reports were properly for the jury to consider (see People v Calabria, 3 NY3d 80 [2004]; People v Stroman, 60 AD3d 708 , lv denied 12 NY3d 921 [2009]; People v Fields, 28 AD3d 789 , 790 [2006]; People v Almonte, 23 AD3d 392 [2005]; People v White, 192 AD2d 736 , 736-737 [1993]). Moreover, the minor discrepancies between the complainant’s description of the defendant’s height, weight, and clothing and his actual physical appearance were also a proper consideration for the jury (see People v Colon, 42 AD3d 549 , 550 [2007]; People v Caballero, 177 AD2d 496 [1991]). Furthermore, the fact that one of the People’s witnesses had an unsavory background and testified pursuant to a cooperation agreement did not render his testimony incredible (see People v Manley, 60 AD3d 870 [2009], lv denied 12 NY3d 927 [2009]; People v Adams, 302 AD2d 601 [2003]; People v Harris, 276 AD2d 562 , 562-563 [2000]; People v Alston, 243 AD2d 573 [1997]).

The defendant was not deprived of his right to a fair trial by the prosecutor’s comments during summation. Although the prosecutor’s remark regarding defense counsel was improper (see People v Torres, 223 AD2d 741 , 742 [1996]), any prejudice that may have resulted from the remark was alleviated when the trial court sustained the defendant’s objection and provided a curative instruction to the jury (see People v Warren, 27 AD3d 496 , 498 [2006]).

p. 706

The defendant’s challenges to the prosecutor’s remarks on the issue of cross-racial identification were not preserved for appellate review, as defense counsel failed to seek further ameliorative action with respect to those comments after his objections were sustained (see CPL 470.05 [2]; People v Medina, 53 NY2d 951 , 953 [1981]; People v Gill, 54 AD3d 965 , 966 [2008]; People v Norman, 40 AD3d 1130 , 1131 [2007]). In any event, the remarks were fair comment upon the evidence and permissive responses to arguments presented in summation by defense counsel (see People v Halm, 81 NY2d 819 , 821 [1993]; People v Smalls, 65 AD3d 708 [2009]; People v Maisonett, 64 AD3d 794 [2009]; People v Pinckney, 27 AD3d 581 , 582 [2006]; People v Dyer, 245 AD2d 299 [1997]).

Given the circumstances of this case, any impropriety with respect to the remaining remarks was harmless in light of the overwhelming evidence of the defendant’s guilt and the absence of a significant probability that, had the remarks not been made, the defendant would have been acquitted (see People v Brosnan, 32 NY2d 254 , 262 [1973]; People v Tucker, 27 AD3d 592 [2006]).

The defendant’s ineffective assistance of counsel claims are not reviewable on direct appeal because they involve matter outside the record (see People v Madrid, 52 AD3d 532 , 533 [2008]; People v Alvarez, 51 AD3d 470 [2008]; People v Staropoli, 49 AD3d 568 , 568-569 [2008]; People v Haynes, 39 AD3d 562 , 564 [2007]; People v Gillespie, 36 AD3d 626 , 627 [2007]; People v Zimmerman, 309 AD2d 824 [2003]; People v Boyd, 244 AD2d 497 [1997]). Mastro, J.P., Miller, Angiolillo and Austin, JJ., concur.

Cases cited

People v. Hawkins 11 NY3d 484 N.Y. 2008-11-25 at 492 p. 705
People v. Finger 95 NY2d 894 N.Y. 2000-10-12 at 895 p. 705
People v. Arias 64 AD3d 786 N.Y. App. Div. 2009-07-28 p. 705
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 705
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 at 348-349 p. 705
People v. Alexis 65 AD3d 1160 N.Y. App. Div. 2009-09-15 p. 705
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 705
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 705
People v. Silberzweig 58 AD3d 762 N.Y. App. Div. 2009-01-20 p. 705
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 705
People v. Calabria 3 NY3d 80 N.Y. 2004-06-08 p. 705
People v. White 192 AD2d 736 N.Y. App. Div. 1993-04-26 at 736-737 p. 705
People v. Colon 42 AD3d 549 N.Y. App. Div. 2007-07-24 at 550 p. 705
People v. Caballero 177 AD2d 496 N.Y. App. Div. 1991-11-04 p. 705
People v. Manley 60 AD3d 870 N.Y. App. Div. 2009-03-17 p. 705
People v. Alston 243 AD2d 573 N.Y. App. Div. 1997-10-14 p. 705
People v. Torres 223 AD2d 741 N.Y. App. Div. 1996-01-29 at 742 p. 705
People v. Warren 27 AD3d 496 N.Y. App. Div. 2006-03-07 at 498 p. 705
People v. Medina 53 NY2d 951 N.Y. 1981-06-02 at 953 p. 706
People v. Gill 54 AD3d 965 N.Y. App. Div. 2008-09-23 at 966 p. 706
People v. Norman 40 AD3d 1130 N.Y. App. Div. 2007-05-29 at 1131 p. 706
People v. Maisonett 64 AD3d 794 N.Y. App. Div. 2009-07-28 p. 706
People v. Pinckney 27 AD3d 581 N.Y. App. Div. 2006-03-14 at 582 p. 706
People v. Dyer 245 AD2d 299 N.Y. App. Div. 1997-12-01 p. 706
People v. Brosnan 32 NY2d 254 N.Y. 1973-05-02 at 262 p. 706
People v. Madrid 52 AD3d 532 N.Y. App. Div. 2008-06-03 at 533 p. 706
People v. Alvarez 51 AD3d 470 N.Y. App. Div. 2008-05-06 p. 706
People v. Staropoli 49 AD3d 568 N.Y. App. Div. 2008-03-04 at 568-569 p. 706
People v. Haynes 39 AD3d 562 N.Y. App. Div. 2007-04-03 at 564 p. 706
People v. Zimmerman 309 AD2d 824 N.Y. App. Div. 2003-10-14 p. 706
People v. Boyd 244 AD2d 497 N.Y. App. Div. 1997-11-17 p. 706