People v Marcus Wiggins

People v Wiggins 2006 NY Slip Op 05673 [31 AD3d 584] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

The People of the State of New York, Respondent,
v
Marcus Wiggins, Appellant.

—[*1]

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 21, 2003, convicting him of murder in the second degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant's challenge to the prosecutor's comments during summation is unpreserved for appellate review (see CPL 470.05 [2]; People v Williams, 305 AD2d 703 [2003]). In any event, the defendant was not denied his right to a fair trial by the prosecutor's comments. Although the prosecutor improperly referred to matters outside the "four corners of the evidence" (People v Ashwal, 39 NY2d 105, 109 [1976]), any prejudice that may have resulted therefrom was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury (see [*2]People v Williams, 14 AD3d 519 [2005]; People v Efferson, 300 AD2d 674 [2002]; People v Burrell, 178 AD2d 422 [1991]).

The defendant correctly concedes that his challenge to the trial court's jury charge is unpreserved for appellate review (see CPL 470.05 [2]; People v Rivera, 307 AD2d 369, 369-370 [2003]; People v Brown, 209 AD2d 532 [1994]). In any event, the court's interested witness charge was proper (see People v Varughese, 21 AD3d 1126, 1128 [2005], lv denied 6 NY3d 782 [2006]; People v Kallamni, 14 AD3d 316, 316-317 [2005]; cf. People v Jackson, 74 NY2d 787, 790 [1989]). Moreover, no circumstantial evidence charge was necessary, as the People adduced both direct and circumstantial evidence of the defendant's guilt (see People v Daddona, 81 NY2d 990, 992 [1993]).

The defendant's contention that he was denied a fair trial by negative news reports during the trial regarding a street gang to which he belonged is unpreserved for appellate review (see CPL 470.05 [2]). In any event, "[t]he defendant has failed to show that any juror formed an opinion based on the negative publicity. Absent such a showing, the defendant's argument must fail" (People v Hardwick, 137 AD2d 714, 718 [1988]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Crane, J.P., Spolzino, Fisher and Lunn, JJ., concur.