W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for
T. Schneiderman, Attorney General, New York, NY (Michelle
Maerov and Nikki Kowalski of counsel), for respondent.
M. LEVENTHAL, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
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
that the judgment is affirmed.
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; People
v Greenberg, 89 N.Y.2d 553, 555-556; People v
Ribowsky, 77 N.Y.2d 284, 291-292).
defendant's contention that the evidence was legally
insufficient to establish his guilt is unpreserved for
appellate review (see CPL 470.05; 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; 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).
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; 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).
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; 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).
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).
the sentence imposed was not excessive (see People v