SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 1, 2009
THE PEOPLE, ETC., RESPONDENT,
DAVID MITCHELL, APPELLANT.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered September 5, 2007, convicting him of manslaughter in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, 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., RANDALL T. ENG, LEONARD B. AUSTIN & SHERI S. ROMAN, JJ.
(Ind. No. 132/07)
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), 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; 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).
While it was proper for the prosecutor to elicit testimony that the defendant attempted to procure a false alibi (see People v Moses, 63 NY2d 299, 308), eliciting the witness's reason for agreeing to provide one was error (see People v Buzzi, 238 NY 390, 398-399; cf. People v Myrick, 31 AD3d 668, 669). However, such error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242).
Furthermore, the defendant's contention concerning a comment made by the prosecutor during summation is unpreserved for appellate review, as he raised only a general objection to the contested remark, failed to request curative instructions, and did not timely move for a mistrial on that ground (see CPL 470.05; People v Dashosh, 59 AD3d 731; People v Miller, 57 AD3d 568). In any event, the challenged portion of the prosecutor's summation constituted fair comment on, or reasonable inferences drawn from, the evidence (see People v Ashwal, 39 NY2d 105; People v Hughley, 43 AD3d 1180).
The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.
SKELOS, J.P., ENG, AUSTIN and ROMAN, JJ., concur.
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