People v. Mason

Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Roni C. Piplani of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered December 6, 2012, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's assertion that the trial court should have granted his request for a justification charge is preserved for appellate review. However, the trial court properly declined to charge the jury on the defense of justification since, viewing the record in the light most favorable to the defendant, no reasonable view of the evidence supported such a charge (see People v. Watts, 57 N.Y.2d 299, 302, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ; People v. Syville, 130 A.D.3d 658, 10 N.Y.S.3d 891 ; People v. Baranov, 121 A.D.3d 706, 707, 993 N.Y.S.2d 337 ; People v. Small, 80 A.D.3d 786, 786–787, 915 N.Y.S.2d 501 ; People v. Dickerson, 67 A.D.3d 700, 700–701, 889 N.Y.S.2d 199 ). In addition, there was no factual issue for resolution by the jury with respect to whether the defendant used physical force or deadly physical force (see Penal Law § 35.15 [1 ], [2] ). The trial court properly determined, in denying the defendant's application for a justification charge, that the defendant used deadly physical force when he struck the complainant in the face with the glass bottle (see Penal Law §§ 10.00[11], 35.15[2] ; People v. White, 66 A.D.3d 585, 586, 888 N.Y.S.2d 15 ; People v. Garcia, 59 A.D.3d 211, 212, 873 N.Y.S.2d 52 ; People v. Saenz, 27 A.D.3d 379, 380, 811 N.Y.S.2d 395 ; cf. People v. Jones, 148 A.D.2d 547, 548–549, 538 N.Y.S.2d 876 ). Moreover, the jury ultimately convicted the defendant of assault in the second degree (see Penal Law § 120.05[2] ) and, therefore, necessarily determined that he used deadly physical force (see Penal Law § 10.00[11], [13] ; People v. Grant, 105 A.D.3d 676, 963 N.Y.S.2d 660 ; People v. White, 66 A.D.3d at 586, 888 N.Y.S.2d 15 ; People v. Garcia, 59 A.D.3d 211, 212, 873 N.Y.S.2d 52 ).

The defendant's contention that he was deprived of a fair trial due to the cumulative effects of improper questions and remarks made by the prosecutor during cross-examination and summation, and the prosecutor's use during summation of a photograph depicting the complainant's injuries, is unpreserved for appellate review (see People v. Mosquero, 128 A.D.3d 985, 10 N.Y.S.3d 137 ; People v. Cherry, 127 A.D.3d 879, 880, 5 N.Y.S.3d 527 ; People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756 ; People v. Floyd, 97 A.D.3d 837, 948 N.Y.S.2d 683 ). In any event, the prosecutor's conduct during cross-examination was not improper (see People v. Wongsam, 105 A.D.3d 980, 981, 963 N.Y.S.2d 345 ; People v. Peters, 98 A.D.3d 587, 589, 949 N.Y.S.2d 491 ; People v. Floyd, 97 A.D.3d at 837–838, 948 N.Y.S.2d 683 ; People v. Gross, 78 A.D.3d 1196, 1197, 912 N.Y.S.2d 115 ; People v. Williams, 13 A.D.3d 660, 660, 786 N.Y.S.2d 357 ; People v. Rivera, 292 A.D.2d 549, 549, 739 N.Y.S.2d 279 ), and most of the challenged summation remarks were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, permissible rhetorical comment, or responsive to defense counsel's summation (see People v. Willis, 122 A.D.3d 950, 950, 997 N.Y.S.2d 472 ; People v. Yusuf, 119 A.D.3d 619, 620, 987 N.Y.S.2d 899 ; People v. Morales, 87 A.D.3d 1165, 1166, 930 N.Y.S.2d 454 ; People v. Umoja, 70 A.D.3d 867, 868, 894 N.Y.S.2d 159 ). To the extent that any of the prosecutor's remarks during summation denigrated the defense, they did not rise to the level of egregious misconduct that would have deprived the defendant of a fair trial (see People v. Cherry, 127 A.D.3d at 880, 5 N.Y.S.3d 527 ; People v. Wallace, 123 A.D.3d at 1152, 997 N.Y.S.2d 756 ; People v. Quezada, 116 A.D.3d 796, 797, 983 N.Y.S.2d 326 ; People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431 ). Moreover, the disputed photograph was not used for the sole purpose of arousing the emotions of the jurors, and was not so inflammatory as to have deprived the defendant of a fair trial (see People v. Valenko, 126 A.D.3d 1020, 1021, 6 N.Y.S.3d 142 ; People v. Dorcinvil, 122 A.D.3d 874, 876, 996 N.Y.S.2d 661 ).

Similarly unpreserved for appellate review is the defendant's contention that the trial court gave an unbalanced interested witness charge by failing to charge that the complainant was an interested witness while charging that the defendant was an interested witness (see CPL 470.05[2] ; People v. DiMassi, 113 A.D.3d 632, 632, 977 N.Y.S.2d 759 ). In any event, this contention is without merit. Evidence that the complainant had commenced a civil action against the defendant was before the jury, and the jury was instructed to consider the interest or lack of interest of any witness in the outcome of that action and whether any witness had a bias, hostility, or some other attitude that affected the truthfulness of the witness's testimony in the instant criminal matter (see People v. Herschman, 119 A.D.3d 813, 814, 989 N.Y.S.2d 340 ; People v. Newman, 107 A.D.3d 827, 828–829, 967 N.Y.S.2d 122 ; People v. Williams, 81 A.D.3d 993, 994, 917 N.Y.S.2d 278 ; People v. Smith, 240 A.D.2d 600, 601, 658 N.Y.S.2d 449 ; People v. Pereda, 200 A.D.2d 774, 775, 607 N.Y.S.2d 98 ).

The defendant also failed to preserve for appellate review his contention that he was deprived of a fair trial by an improper remark made by the trial court to the prospective jurors during voir dire (see CPL 470.05[2] ; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696 ). Contrary to the defendant's contention, the court's alleged misconduct did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 N.Y.3d 880, 881, 826 N.Y.S.2d 595, 860 N.E.2d 55 ; People v. Cunningham, 119 A.D.3d at 601–602, 988 N.Y.S.2d 696 ; People v. Cassanova, 62 A.D.3d 88, 91–92, 875 N.Y.S.2d 31 ; People v. McDuffie, 270 A.D.2d 362, 704 N.Y.S.2d 871 ). In any event, the court's remark to the prospective jurors, while inappropriate, does not warrant reversal (see People v. Bailey, 66 A.D.3d 491, 491, 889 N.Y.S.2d 1 ; People v. Daniel, 37 A.D.3d 731, 732, 830 N.Y.S.2d 319 ; People v. Alston, 225 A.D.2d 453, 454, 639 N.Y.S.2d 347 ).Finally, considering all of the relevant circumstances of this matter, including the collateral immigration consequences to the defendant, the sentence imposed was not excessive (see People v. Serrano, 129 A.D.3d 997 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).