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People v. Baez

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 17, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
EDWARD BAEZ, APPELLANT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered September 4, 2003, convicting him of kidnapping in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and RANDALL T. ENG, JJ.

(Ind. No. 1791/02)

DECISION & ORDER

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), 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), 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, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). 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).

The defendant's contention that the jury verdict was repugnant is unpreserved for appellate review (see CPL 470.05[2]; People v Alfaro, 66 NY2d 985, 987; People v Brown, 38 AD3d 676, 677). In any event, contrary to the defendant's contention, the verdict was not repugnant as a matter of law (see People v Tucker, 55 NY2d 1).

Also contrary to the defendant's contention, the trial court did not deny him the right to confront the witnesses against him by its decision to limit his cross-examination of a certain prosecution witness (see Delaware v Van Arsdall, 475 US 673, 679; People v Stevens, 45 AD3d 610, 611). Nor was the defendant denied his right to a fair trial by the testimony of a certain police officer that markings on the window of a vehicle involved with the subject incident looked like "cleansed markings" (see People v Russell, 165 AD2d 327, 332).

The defendant's claim that the prosecutor's allegedly improper summation remarks denied him his right to a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v Romero, 7 NY3d 911, 912; People v Garcia, 52 AD3d 734). In any event, the challenged remarks did not deny the defendant his right to a fair trial, as "the ... remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation" (People v Gillespie, 36 AD3d 626, 627; see People v Dorgan, 42 AD3d 505; People v McHarris, 297 AD2d 824, 825; People v Clark, 222 AD2d 446, 447; People v Vaughn, 209 AD2d 459, 460).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant's remaining contentions raised in Point III of his brief are without merit.

SKELOS, J.P., SANTUCCI, BALKIN and ENG, JJ., concur.

20090217

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