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People v. McIver

Supreme Court of New York, Fourth Department

June 14, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DEREK MCIVER, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered August 1, 2011. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JAMES R. GARDNER OF COUNSEL), FOR RESPONDENT.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendant contends that the evidence of his possession of the dangerous contraband is legally insufficient to support the conviction. We reject that contention (see generally People v Bleakley, 69 N.Y.2d 490, 495). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we conclude that the evidence is legally sufficient to establish that defendant constructively possessed the weapon in question by exercising dominion and control over the area from which the weapon was seized (see § 10.00 [8]; People v Gayle, 53 A.D.3d 857, 859, lv denied 11 N.Y.3d 832; see generally People v Manini, 79 N.Y.2d 561, 573).

With respect to defendant's further contention that he was deprived of a fair trial by prosecutorial misconduct during summation, we conclude that " the prosecutor [did not] vouch for the credibility of the People's witnesses. Faced with defense counsel's focused attack on their credibility, the prosecutor was clearly entitled to respond by arguing that the witnesses had, in fact, been credible... An argument by counsel that his [or her] witnesses have testified truthfully is not vouching for their credibility' " (People v Roman, 85 A.D.3d 1630, 1632, lv denied 17 N.Y.3d 821; see People v Mendez, 80 A.D.3d 523, 524, lv denied 16 N.Y.3d 861; People v Ruiz, 8 A.D.3d 831, 832, lv denied 3 N.Y.3d 711). In any event, the two comments challenged by defendant were not so egregious as to deny defendant a fair trial (see People v Lyon, 77 A.D.3d 1338, 1339, lv denied 15 N.Y.3d 954; People v Pringle, 71 A.D.3d 1450, 1451, lv denied 15 N.Y.3d 777; People v White, 291 A.D.2d 842, 843, lv denied 98 N.Y.2d 656).

Finally, we conclude that the sentence is not unduly harsh or severe.


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