People v Collins

People v Collins 2011 NY Slip Op 09666 Decided on December 27, 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 December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2010-02885
(Ind. No. 3157/07)

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

v

Melvin Collins, appellant.




Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of
counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y.
(John M. Castellano, Jeanette
Lifschitz, and Rona I. Kugler of counsel),
for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered March 8, 2010, convicting him of robbery in the second degree (two counts), attempted robbery in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), unauthorized use of a vehicle in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly admitted a recording of a telephone call made by the defendant while he was incarcerated (see People v Ely, 68 NY2d 520, 527-528; People v McGee, 49 NY2d 48, 59-60, cert denied sub nom. Waters v New York, 446 US 942). A sufficient foundation was established through the testimony of a senior program specialist for the Department of Corrections, who testified, inter alia, that he was familiar with the recording system at the prison, that the prison routinely recorded the inmates' telephone calls, and that the recordings were housed in a computer system and identified by an inmate's unique book and case number (see People v Cratsley, 86 NY2d 81, 89-91; People v Kennedy, 68 NY2d 569, 575-578; cf. People v Manor, 38 AD3d 1257).

We reject the defendant's contention that he was deprived of a fair trial by improper comments made during summation by the prosecutor. The challenged remarks were within the bounds of permissible rhetorical comment, fair response to arguments and issues raised by the defense, fair comment on the evidence, or cured by the trial court's charge to the jury (see People v Cabrera, 85 AD3d 942, 943).

The defendant's contention that the jury charge on consciousness of guilt was deficient is unpreserved for appellate review (see CPL 470.05[2]; People v Mella-Rodriguez, 39 AD3d 671, 672), and, in any event, is without merit (see People v Knight, 261 AD2d 487, 487).
RIVERA, J.P., ENG, ROMAN and SGROI, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court