July 5, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KURY SPENCER, DEFENDANT-APPELLANT.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), rendered January 13, 2011. The judgment convicted defendant, upon a jury verdict, of assault in the second degree (two counts) and failure to keep right.
MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, 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, inter alia, two counts of assault in the second degree (Penal Law § 120.05 ), defendant contends that he was denied a fair trial based on prosecutorial misconduct. We reject that contention. When defense counsel objected to a remark made by the prosecutor during his opening statement on the ground that it improperly shifted the burden of proof, County Court instructed the jury to disregard the comment, and the jury is presumed to have followed the court's instruction (see People v Page, 105 A.D.3d 1380, 1382). Additionally, we conclude that the isolated remark did not deprive defendant of a fair trial (see People v Turgeon, 8 A.D.3d 1109, 1109, lv denied 3 N.Y.3d 682). Defendant also contends that the prosecutor engaged in misconduct by pursuing charges relating to two victims because the incidents involving those victims occurred in a different jurisdiction from the incident involving the third victim, but we conclude that defendant was not prejudiced thereby. The charges against defendant arose from his actions while he was operating a motor vehicle and where his vehicle almost struck the respective vehicles of the two victims at issue before colliding head-on with a third vehicle; defendant, however, was convicted of charges stemming only from the collision with the third vehicle. Moreover, the evidence with respect to the near collision with the first two vehicles would have been admissible in the trial on the charges with respect to the collision with the third vehicle (see People v MacLean, 48 A.D.3d 1215, 1215-1216, lv denied 10 N.Y.3d 866, reconsideration denied 11 N.Y.3d 790), and thus there was no prejudice to defendant (see generally People v Brown, 83 N.Y.2d 791, 794). The remarks by the prosecutor during his cross-examination of a defense witness, while inappropriate, did not deny defendant a fair trial inasmuch as the remarks were not aimed at defendant nor did they have any negative impact on him (see People v Rodriguez, 103 A.D.2d 121, 128-129). Although we agree with defendant that the prosecutor engaged in misconduct by referring to facts not in evidence, the court issued strong curative instructions that alleviated any prejudice (see People v Stallworth, 21 A.D.3d 1412, 1413, lv denied 6 N.Y.3d 759).
Contrary to defendant's contention, the court did not abuse its discretion in denying his request to poll the jurors to determine whether they had knowledge of a story published during the trial about the case (see People v Rivera, 31 A.D.3d 790, 790-791, lv denied 7 N.Y.3d 904; see generally People v Shulman, 6 N.Y.3d 1, 32, cert denied 547 U.S. 1043; People v Williams, 78 A.D.3d 160, 167, lv denied 16 N.Y.3d 838). The court properly noted that conducting such an inquiry "could have the effect of focusing the jurors' attention on something that there was no indication any of them had seen" (Williams, 78 A.D.3d at 167). The court also properly denied defendant's motion for a Frye hearing inasmuch as the testimony of the People's expert "did not involve any novel procedures or innovative scientific theory" (People v Garrow, 75 A.D.3d 849, 852; see generally People v Wernick, 89 N.Y.2d 111, 115-116). Instead, the expert's conclusions regarding intoxication by dextromethorphan, an ingredient in cough syrup, were based on basic principles of toxicology, which is a "well-established and accepted methodolog[y]" (Nonnon v City of New York, 88 A.D.3d 384, 394; see Marso v Novak, 42 A.D.3d 377, 378, lv denied 12 N.Y.3d 704, rearg denied 12 N.Y.3d 881).
Finally, defendant contends that he "was unconstitutionally punished for exercising his right to a trial by a judge who should have recused himself." To the extent that defendant contends that the court should have granted his recusal motion, we conclude that there was no abuse of discretion by the court (see People v Shultis, 61 A.D.3d 1116, 1117, lv denied 12 N.Y.3d 929; People v Brown, 270 A.D.2d 917, 917-918, lv denied 95 N.Y.2d 851; see generally People v Moreno, 70 N.Y.2d 403, 405-406). Defendant failed to preserve for our review his contention that the sentence was vindictive (see People v Hurley, 75 N.Y.2d 887, 888; People v Irrizarry, 37 A.D.3d 1082, 1083, lv denied 8 N.Y.3d 946) and, in any event, that contention is also without merit (see Irrizarry, 37 A.D.3d at 1083). It is well settled that " [t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial' " (id.). The sentence is not unduly harsh or severe.