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People v. Jenkins

93 A.D.3d 861 Court N.Y. App. Div. Decision date 2012-03-27 English

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The People of the State of New York, Respondent, v Andre Jenkins, Appellant.
[940 NYS2d 874]

Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered October 3, 2005, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 , 621 [1983]), it was legally sufficient to establish his identity as the perpetrator (see People v Chase, 60 AD3d 1077 , 1078 [2009]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Mills, 20 AD3d 779 , 780 [2005]; cf. People v Chase( 60 AD3d at 1078-1079 ).

The defendant’s contentions that the admission into evidence of a certain statement a nontestifying codefendant made to the police violated his Sixth Amendment right to confrontation under Bruton v United States ( 391 US 123 [1968]), and under Crawford v Washington ( 541 US 36 [2004]), are unpreserved for appellate review (see CPL 470.15; People v Reid, 71 AD3d 699 , 699-700 [2010]) and, in any event, without merit (see Crawford v Washington, 541 US at 59 n 9; People v Reynoso, 2 NY3d 820 , 821 [2004]; People v Mack, 89 AD3d 864 , 865-866 [2011]; People v Reyes, 49 AD3d 565 , 566 [2008]; People v Dickson, 21 AD3d 646 , 647 [2005]; People v Melendez, 285 AD2d 819 , 821-822 [2001]; People v Johnson, 224 AD2d 635 , 638 [1996]; People v Davis, 168 AD2d 565 , 565 [1990]).

The defendant’s contention that certain allegedly improper comments made by the prosecutor during his summation deprived the defendant of his right to a fair trial is largely unpreserved for appellate review (see CPL 470.05 [2]; People v Osorio, 49 AD3d 562 , 563-564 [2008]). In any event, for the

p. 862
most part, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the summation of defense counsel or the codefendant’s counsel (see People v Dorgan, 42 AD3d 505 [2007]; People v McHarris, 297 AD2d 824 , 825 [2002]; People v Clark, 222 AD2d 446 , 447 [1995]; People v Vaughn, 209 AD2d 459 , 460 [1994]; People v Holder, 203 AD2d 382 , 383 [1994]; People v Anderson, 154 AD2d 607 , 607 [1989]; People v Geddes, 134 AD2d 279 , 280 [1987]; cf. People v Smith, 288 AD2d 496 , 497 [2001]). To the extent that some of the comments were improper, they were sufficiently addressed by the trial court’s instructions to the jury (see People v Evans, 291 AD2d 569 [2002]; People v Brown, 272 AD2d 338 , 339 [2000]) and, in any event, “were not so flagrant or pervasive as to deny the defendant a fair trial” (People v Almonte, 23 AD3d 392 , 394 [2005]; see People v Svanberg, 293 AD2d 555 [2002]).

The defendant’s contention that he did not receive the effective assistance of counsel is without merit (see People v Baldi, 54 NY2d 137 , 147 [1981]; see also People v Caban, 5 NY3d 143 , 156 [2005]). Dillon, J.E, Florio, Austin and Roman, JJ., concur.

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