People v. Jean-Marie

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 [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]). [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.