People v Syville

People v Syville 2011 NY Slip Op 09171 Decided on December 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, Román, JJ.
6380 5785/02

[*1]The People of the State of New York, Respondent,

v

Nathaniel Syville, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia
Curran of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered November 19, 2004, as amended January 6, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of 12 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). There is no basis for disturbing the jury's credibility determinations. The forensic evidence, viewed as a whole, tended to corroborate rather than undermine the victim's testimony.

The court properly exercised its discretion when it denied defendant's requests to introduce two alleged prior inconsistent statements made by the victim (see People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]; People v Jackson, 29 AD3d 400 [2006], lv denied 7 NY3d 790 [2006]). The purported inconsistencies were taken out of context and lacked probative value. Since defendant never asserted a constitutional right to introduce either piece of evidence, his present constitutional claim is unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see Crane v Kentucky, 476 US 683, 689-690 [1986]; Delaware v Van Arsdall, 475 US 673, 678—679 [1986]).

The portion of the prosecutor's summation to which defendant objected on the ground of speculation drew permissible inferences from the evidence in response to defense counsel's summation, and did not deprive defendant of a fair trial. Defendant's remaining claims regarding the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236
AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2011

CLERK