Lynn W. L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Adam M. Koelsch of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered January 5, 2010, convicting her of burglary in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's assertion that the evidence was legally insufficient to support the jury verdict is unpreserved for appellate review (see People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 N.Y.3d 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 N.Y.3d 383, cert denied 542 U.S. 946; People v Jones, 79 A.D.3d 1073, 1074). 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 N.Y.3d 633).
The defendant's claim that the trial court discharged potential jurors based upon hardship without conducting a sufficient inquiry is unpreserved for appellate review (see People v Casanova, 62 A.D.3d 88, 92; People v Toussaint, 40 A.D.3d 1017, 1017-1018) and, in any event, is without merit (see People v Umana, 76 A.D.3d 1111, 1112; People v Toussaint, 40 A.D.3d at 1017-1018).
Contrary to the defendant's contention, the trial court properly precluded evidence of third-party culpability as speculative, lacking in probative value, and constituting inadmissible hearsay (see People v Schulz, 4 N.Y.3d 521, 528-529; People v Primo, 96 N.Y.2d 351, 356-357; People v West, 86 A.D.3d 583, 585).
The defendant's arguments regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review (see CPL 470.05; People v Dien, 77 N.Y.2d 885; People v Nuccie, 57 N.Y.2d 818). In any event, although some of the prosecutor's remarks, as quoted by our dissenting colleague, improperly included gender stereotyping, the improper comments were not so flagrant or pervasive in the context of the entire summation as to deprive the defendant of a fair trial (see People v Ward, 106 A.D.3d 842, 843; People v Rayford, 80 A.D.3d 780, 781). Other comments about which the defendant now complains were within the proper bounds of response to the defense summation in that they presented arguments based upon the evidence and the inferences to be drawn therefrom that the crime was a targeted attack motivated by the defendant's jealousy toward the victim, who was involved in a relationship with the defendant's former boyfriend, rather than a random attack by an unapprehended perpetrator during the course of a robbery, as the defense had suggested (see People v Halm, 81 N.Y.2d 819, 821; People v Griffin, 67 A.D.3d 702). Further, any prejudice resulting from the prosecutor's comments that the defendant's alibi defense was not raised in a timely manner was alleviated by the trial court's instructions to the jury that the defendant served a notice of alibi and presented her defense in a timely manner (see People v Rayford, 80 A.D.3d at 781).
The defendant's remaining contentions are without merit.
ANGIOLILLO, J.P., CHAMBERS and ROMAN, JJ., concur.
HINDS-RADIX, J., dissents and votes to reverse the judgment appealed from and to order a new trial, with the following memorandum:
The complainant and the defendant were engaged in a long-standing feud because the complainant was living with the defendant's former boyfriend, Tony Mann, who fathered two of the defendant's children. In the early morning of March 9, 2008, a masked man and an unmasked woman whom the complainant recognized as the defendant attacked her in a stairwell outside her apartment, hit her on the head, and dragged her into her apartment. Once inside, the man, who was carrying a gun, and the woman, who was carrying a knife, beat the complainant, cut her on different parts of her head, ransacked her apartment, and took money from her purse. The complainant called the police, and once they arrived she told them that the defendant and an accomplice had attacked her. The complainant also called her former husband and told him that the defendant had attacked her. She was taken to a hospital, where she was treated for fractures of ...