People v. Jenkins

Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered October 3, 2005, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), it was legally sufficient to establish his identity as the perpetrator (see People v Chase, 60 AD3d 1077, 1078 [2009]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Mills, 20 AD3d 779, 780 [2005]; cf. People v Chase( 60 AD3d at 1078-1079).

The defendant’s contentions that the admission into evidence of a certain statement a nontestifying codefendant made to the police violated his Sixth Amendment right to confrontation under Bruton v United States (391 US 123 [1968]), and under Crawford v Washington (541 US 36 [2004]), are unpreserved for appellate review (see CPL 470.15; People v Reid, 71 AD3d 699, 699-700 [2010]) and, in any event, without merit (see Crawford v Washington, 541 US at 59 n 9; People v Reynoso, 2 NY3d 820, 821 [2004]; People v Mack, 89 AD3d 864, 865-866 [2011]; People v Reyes, 49 AD3d 565, 566 [2008]; People v Dickson, 21 AD3d 646, 647 [2005]; People v Melendez, 285 AD2d 819, 821-822 [2001]; People v Johnson, 224 AD2d 635, 638 [1996]; People v Davis, 168 AD2d 565, 565 [1990]).

The defendant’s contention that certain allegedly improper comments made by the prosecutor during his summation deprived the defendant of his right to a fair trial is largely unpreserved for appellate review (see CPL 470.05 [2]; People v Osorio, 49 AD3d 562, 563-564 [2008]). In any event, for the

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most part, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the summation of defense counsel or the codefendant’s counsel (see People v Dorgan, 42 AD3d 505 [2007]; People v McHarris, 297 AD2d 824, 825 [2002]; People v Clark, 222 AD2d 446, 447 [1995]; People v Vaughn, 209 AD2d 459, 460 [1994]; People v Holder, 203 AD2d 382, 383 [1994]; People v Anderson, 154 AD2d 607, 607 [1989]; People v Geddes, 134 AD2d 279, 280 [1987]; cf. People v Smith, 288 AD2d 496, 497 [2001]). To the extent that some of the comments were improper, they were sufficiently addressed by the trial court’s instructions to the jury (see People v Evans, 291 AD2d 569 [2002]; People v Brown, 272 AD2d 338, 339 [2000]) and, in any event, “were not so flagrant or pervasive as to deny the defendant a fair trial” (People v Almonte, 23 AD3d 392, 394 [2005]; see People v Svanberg, 293 AD2d 555 [2002]).

The defendant’s contention that he did not receive the effective assistance of counsel is without merit (see People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Caban, 5 NY3d 143, 156 [2005]). Dillon, J.E, Florio, Austin and Roman, JJ., concur.