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People v. Carney

Supreme Court of New York, Third Department

October 24, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
KIRK F. CARNEY, Appellant.

September 9, 2013

Cliff Gordon, Monticello, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Peters, P.J., Stein, McCarthy and Spain, JJ.

MEMORANDUM AND ORDER

PETERS, P.J.

Appeal from a judgment of the County Court of Ulster County (Tailleur, J.), rendered July 22, 2011, upon a verdict convicting defendant of the crimes of criminal contempt in the second degree, menacing in the second degree, criminal possession of a weapon in the fourth degree and driving while ability impaired.

Following a jury trial, defendant was convicted of criminal contempt in the second degree, menacing in the second degree, criminal possession of a weapon in the fourth degree and driving while ability impaired. The charges stemmed from an incident wherein defendant, among other things, pointed a rifle at the vehicle stopped next to him at a traffic light. Defendant was sentenced to 180 days in jail on his conviction of driving while ability impaired, to run consecutively with concurrent one year jail terms on the remaining misdemeanor charges. He appeals, and we affirm.

At trial, the deputy sheriff who arrested defendant testified as to the description and license plate of defendant's vehicle provided to him by the victims. Defendant's contention that this testimony constituted hearsay and should not have been admitted is without merit. Such testimony was not being offered for the truth of its content but, rather, to explain the basis of the subsequent actions taken by the officer (see People v Abare, 86 A.D.3d 803, 805 [2011], lv denied 19 N.Y.3d 861 [2012]; People v Barnett, 278 A.D.2d 660, 661 [2000], lvs denied 96 N.Y.2d 825, 828 [2001]; People v Roraback, 242 A.D.2d 400, 403 [1997], lvs denied 91 N.Y.2d 878, 879 [1997]).

Defendant's assertion that the prosecutor improperly vouched for the People's witnesses and asserted her own personal beliefs during summation, and that the prejudicial effect of these remarks requires reversal, is similarly unavailing. The majority of the alleged inappropriate statements were not objected to and, thus, are unpreserved for our review (see People v Perry, 95 A.D.3d 1444, 1446 [2012], lvs denied 19 N.Y.3d 995, 1000 [2012]; People v Terry, 85 A.D.3d 1485, 1487 [2011], lv denied 17 N.Y.3d 862 [2011). The remaining two challenged remarks, while improper, were met with sustained objections, thereby limiting any resulting prejudice, and no curative instructions were requested (see People v Guay, 18 N.Y.3d 16, 24 [2011]; People v Hughes, 93 A.D.3d 889, 891 [2012], lv denied 19 N.Y.3d 961 [2012]; People v Joseph, 68 A.D.3d 1534, 1536 [2009], lv denied 14 N.Y.3d 889 [2010], cert denied __ U.S. ___, 131 S.Ct. 797 [2010]; People v Weber, 40 A.D.3d 1267, 1268 [2007], lv denied 9 N.Y.3d 927 [2007]). Further, the jury was subsequently directed to disregard any comment made during summation to which an objection was sustained and was twice instructed that counsel's remarks during summation did not constitute evidence (see People v Rowe, 105 A.D.3d 1088, 1091 [2013], lv denied 21 N.Y.3d 1019 [2013]; People v Hughes, 93 A.D.3d at 891; People v Newkirk, 75 A.D.3d 853, 857 [2010], lv denied 16 N.Y.3d 834 [2011]). In light of these circumstances and considering the overwhelming evidence of guilt, defendant's right to a fair trial was not compromised.

Stein, McCarthy and Spain, JJ., concur.

ORDERED that the judgment is affirmed.


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