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People v. Akenami

Supreme Court of New York, Second Department

June 7, 2017

The People of the State of New York, respondent,
v.
Robinson Akenami, appellant. Ind. No. 2555/11

          Lynn W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant.

          Eric T. Schneiderman, Attorney General, New York, NY (Michelle Maerov and Nikki Kowalski of counsel), for respondent.

          JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered March 21, 2014, convicting him of scheme to defraud in the first degree, grand larceny in the third degree (six counts), and grand larceny in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         Contrary to the defendant's contention, the prosecution established by a preponderance of the evidence that venue was proper in Kings County (see CPL 20.40[1]; People v Greenberg, 89 N.Y.2d 553, 555-556; People v Ribowsky, 77 N.Y.2d 284, 291-292).

         The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05[2]; 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, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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 their demeanor (see People v Mateo, 2 N.Y.3d 383, 410; 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).

         The defendant's challenge to the Supreme Court's instruction to the jury on grand larceny in the fourth degree is unpreserved for appellate review (see CPL 470.05[2]; People v Washington, 117 A.D.3d 1091, 1092; People v Hall, 56 A.D.3d 798, 799) and, in any event, without merit. As the instruction was not improper, defense counsel's failure to object to that instruction did not constitute ineffective assistance of counsel (see People v Smith, 135 A.D.3d 970, 971; People v Muirhead, 110 A.D.3d 833, 835).

         The defendant's contention that certain remarks made by the prosecutor during summation were improper and deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v Martin, 116 A.D.3d 981, 982; People v Santos, 105 A.D.3d 1064, 1065). In any event, the challenged summation remarks were either fair comment on the evidence or within the bounds of permissible rhetorical comment (see People v Galloway, 54 N.Y.2d 396, 399; People v Ashwal, 39 N.Y.2d 105, 109-110). Since the challenged remarks were not improper, defense counsel's failure to object to these remarks did not constitute ineffective assistance of counsel (see People v Stevenson, 129 A.D.3d 998, 999; People v McGowan, 111 A.D.3d 850, 851).

         The defendant also failed to preserve for appellate review his contention that the Supreme Court, by the sentence it imposed after trial, penalized him for exercising his right to a trial (see People v Hurley, 75 N.Y.2d 887, 888; People v Prince, 128 A.D.3d 987, 988; People v Murray, 116 A.D.3d 1068, 1069). In any event, the record does not indicate any retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v Seymore, 106 A.D.3d 1033, 1034; People v Griffin, 98 A.D.3d 688, 690).

         Moreover, the sentence imposed was not excessive (see People v ...


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