People v McCoy

People v McCoy 2011 NY Slip Op 08779 Decided on November 29, 2011 Appellate Division, Second 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 November 29, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2009-01862
(Ind. No. 2886/07)

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

v

Isaiah McCoy, appellant.




Lynn W. L. Fahey, New York, N.Y. (Kendra L. Hutchinson of
counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y.
(John M. Castellano, Nicoletta J.
Caferri, and Laura T. Ross of
counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered February 10, 2009, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the trial court's questioning during defense counsel's cross-examination of a witness is unpreserved for appellate review (see People v Charleston, 56 NY2d 886, 888; People v Rivers, 85 AD3d 826, lv denied 17 NY3d 821; People v Bembury, 14 AD3d 575, 576). In any event, while the court, at times, took an active role in the questioning during cross-examination, its conduct, "measured both qualitatively and quantitatively" (People v Yut Wai Tom, 53 NY2d 44, 55), did not deprive the defendant of a fair trial (see People v Rivers, 85 AD3d 826; People v Perez, 30 AD3d 542; People v Bembury, 14 AD3d at 576). Any potential prejudice to the defendant was minimized by the trial court's instructions advising the jury that the trial court had no opinion concerning the case (see People v Rivers, 85 AD3d 826; People v Charles-Pierre, 31 AD3d 659, 660; People v Bembury, 14 AD3d at 576).

The defendant's contention that the prosecutor improperly vouched for an eyewitness during his summation is without merit. The challenged remarks were responsive to defense counsel's summation (see People v Carey, 67 AD3d 925). The defendant's remaining contentions that he was deprived of a fair trial by certain other remarks made by the prosecutor during summation are unpreserved for appellate review (see CPL 470.05[2]; People v Romero, 7 NY3d 911, 912; People v Tonge, 93 NY2d 838, 838—839). In any event, the challenged remarks were either fair comment on the evidence adduced at trial or responsive to defense counsel's summation (see People v Ashwal, 39 NY2d 105, 109—110; People v Jones, 76 AD3d 716, 717; People v Diaz, 59 AD3d 459, 459—460).
ANGIOLILLO, J.P., HALL, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court