SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
865
KA 10-00305
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TERRENCE ODUMS, DEFENDANT-APPELLANT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 3, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of criminal possession of a
weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]).
Defendant contends that the verdict is against the weight of the
evidence because the testimony of a prosecution witness was incredible
and inconsistent with prior statements he made to the police. We
reject that contention. “Where, as here, witness credibility is of
paramount importance to the determination of guilt or innocence, the
appellate court must give ‘[g]reat deference . . . [to the]
fact-finder’s opportunity to view the witnesses, hear the testimony
and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967, lv denied
4 NY3d 831, quoting People v Bleakley, 69 NY2d 490, 495). Indeed, a
jury is able to “assess [the] credibility and reliability [of the
witnesses] in a manner that is far superior to that of reviewing
judges[,] who must rely on the printed record” (People v Lane, 7 NY3d
888, 890). Here, the “[i]ssues of identification and credibility,
including the weight to be given to inconsistencies in testimony, were
properly considered by the jury[,] and there is no basis for
disturbing its determinations” (People v Williams, 17 AD3d 203, 204,
lv denied 4 NY3d 892; see People v McMillon, 77 AD3d 1375, 1376, lv
denied 16 NY3d 897; see generally Bleakley, 69 NY2d at 495). Viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we thus conclude that
the verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).
-2- 865
KA 10-00305
We reject the contention of defendant that County Court deprived
him of the right to present a defense by restricting the scope of the
testimony of a police witness on redirect examination. “The extent of
redirect examination is, for the most part, governed by the sound
discretion of the trial court” (People v Melendez, 55 NY2d 445, 451;
see People v Massie, 2 NY3d 179, 183), and there is no evidence that
the court abused its discretion in this case (see People v Taylor, 231
AD2d 945, 946, lv denied 89 NY2d 930).
We reject the further contention of defendant that he was
deprived of a fair trial based upon comments made by the prosecutor
during her summation. We conclude that the prosecutor’s comments at
issue were “a fair response to defense counsel’s summation and did not
exceed the bounds of legitimate advocacy” (People v Melendez, 11 AD3d
983, 984, lv denied 4 NY3d 888). We also note that, “although the
prosecutor improperly commented on facts not in evidence, the court
sustained defendant’s objection to those improper comments and any
prejudicial effect therefore was dispelled” (People v Davis, 38 AD3d
1170, 1172, lv denied 9 NY3d 842, cert denied 552 US 1065).
We also reject defendant’s contention that he was punished for
exercising his right to a jury trial. “ ‘[T]he mere fact that a
sentence imposed after trial is greater than that offered in
connection with plea negotiations is not proof that defendant was
punished for asserting his right to trial . . . , and there is no
indication in the record before us that the sentencing court acted in
a vindictive manner based on defendant’s exercise of the right to a
trial’ ” (People v Stubinger, 87 AD3d 1316, 1317, lv denied 18 NY3d
862), or that the court “ ‘placed undue weight upon defendant’s
ill-advised decision to reject [a] favorable plea bargain and proceed
to trial’ ” (People v Smith, 21 AD3d 1277, 1278, lv denied 7 NY3d
763). Defendant failed to preserve for our review his contention that
“the court at sentencing erroneously considered crimes of which he was
not convicted,” and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice
(People v Faison, 113 AD3d 1135, 1136-1137, lv denied ___ NY3d ___
[July 24, 2014]; see generally People v Hirsh, 106 AD3d 1546, 1548, lv
denied 22 NY3d 1088). Finally, we conclude that the sentence is not
unduly harsh or severe.
Entered: October 3, 2014 Frances E. Cafarell
Clerk of the Court