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People v. Papas

Supreme Court of New York, Second Department

October 30, 2013

The People of the State of New York, respondent,
v.
Michael Papas, appellant. Ind. No. 2901/09

Lynn W. L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel; Daniel Berman on the brief), for respondent.

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered May 17, 2010, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court improperly curtailed defense counsel's summation argument regarding the lack of a motive. While we agree that the Supreme Court improvidently exercised its discretion in sustaining the prosecutor's objections to the argument (see generally People v Ashwal, 39 N.Y.2d 105, 109; People v Sangamino, 258 NY 85, 88; cf. People v Torain, 266 A.D.2d 322), the error was harmless, as the evidence of the defendant's guilt was overwhelming, and there is no significant probability that the error contributed to the defendant's conviction (see People v Crimmins, 36 N.Y.2d 230, 241-242). The defendant's contentions that the Supreme Court gave incomplete instructions with respect to the issue of motive and that the errors deprived him of his constitutional right to a fair trial are unpreserved for appellate review (see CPL 470.05[2]; People v Lane, 7 N.Y.3d 888, 889; People v Rios, 60 N.Y.2d 764, 766; People v Rodriguez, 91 A.D.3d 797, 797), and we decline to review them in the exercise of our interest of justice jurisdiction (see People v Addison, 107 A.D.3d 730, 731-732; People v Hazare, 105 A.D.3d 975).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; 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, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 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 N.Y.3d 633).

There is no merit to the defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel (see People v Benevento, 91 N.Y.2d 708, 713-714; People v Baldi, 54 N.Y.2d 137, 147; Strickland v Washington, 466 U.S. 668).

The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

The defendant's remaining contentions, raised in his pro se supplemental brief, are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction.

RIVERA, J.P., SGROI, COHEN and HINDS-RADIX, JJ., concur.


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