People v. McIver

Appellate Division of the Supreme Court of New York

People v. McIver

107 A.D.3d 1591, 966 N.Y.S.2d 727

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 2013

StatusPublished

Cited by6 cases

This text of 107 A.D.3d 1591 (People v. McIver) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McIver, 107 A.D.3d 1591, 966 N.Y.S.2d 727 (N.Y. Ct. App. 2013).

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Opinion

Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), rendered August 1, 2011. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendant contends that the evidence of his possession of the dangerous contraband is legally insufficient to support the conviction. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to establish that defendant [1592]*1592constructively possessed the weapon in question by exercising dominion and control over the area from which the vzeapon was seized (see § 10.00 [8]; People v Gayle, 53 AD3d 857, 859 [2008], lv denied 11 NY3d 832 [2008]; see generally People v Manini, 79 NY2d 561, 573 [1992]).

With respect to defendant’s further contention that he was deprived of a fair trial by prosecutorial misconduct during summation, we conclude that “ ‘the prosecutor [did not] vouch for the credibility of the People’s witnesses. Faced with defense counsel’s focused attack on their credibility, the prosecutor was clearly entitled to respond by arguing that the witnesses had, in fact, been credible . . . An argument by counsel that his [or her] witnesses have testified truthfully is not vouching for their credibility’ ” (People v Roman, 85 AD3d 1630, 1632 [2011], lv denied 17 NY3d 821 [2011]; see People v Mendez, 80 AD3d 523, 524 [2011], lv denied 16 NY3d 861 [2011]; People v Ruiz, 8 AD3d 831, 832 [2004], lv denied 3 NY3d 711 [2004]). In any event, the two comments challenged by defendant were not so egregious as to deny defendant a fair trial (see People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]; People v Pringle, 71 AD3d 1450, 1451 [2010], lv denied 15 NY3d 777 [2010]; People v White, 291 AD2d 842, 843 [2002], lv denied 98 NY2d 656 [2002]).

Finally, we conclude that the sentence is not unduly harsh or severe. Present — Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), rendered August 1, 2011. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendant contends that the evidence of his possession of the dangerous contraband is legally insufficient to support the conviction. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to establish that defendant [1592]*1592constructively possessed the weapon in question by exercising dominion and control over the area from which the vzeapon was seized (see § 10.00 [8]; People v Gayle, 53 AD3d 857, 859 [2008], lv denied 11 NY3d 832 [2008]; see generally People v Manini, 79 NY2d 561, 573 [1992]).

With respect to defendant’s further contention that he was deprived of a fair trial by prosecutorial misconduct during summation, we conclude that “ ‘the prosecutor [did not] vouch for the credibility of the People’s witnesses. Faced with defense counsel’s focused attack on their credibility, the prosecutor was clearly entitled to respond by arguing that the witnesses had, in fact, been credible . . . An argument by counsel that his [or her] witnesses have testified truthfully is not vouching for their credibility’ ” (People v Roman, 85 AD3d 1630, 1632 [2011], lv denied 17 NY3d 821 [2011]; see People v Mendez, 80 AD3d 523, 524 [2011], lv denied 16 NY3d 861 [2011]; People v Ruiz, 8 AD3d 831, 832 [2004], lv denied 3 NY3d 711 [2004]). In any event, the two comments challenged by defendant were not so egregious as to deny defendant a fair trial (see People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]; People v Pringle, 71 AD3d 1450, 1451 [2010], lv denied 15 NY3d 777 [2010]; People v White, 291 AD2d 842, 843 [2002], lv denied 98 NY2d 656 [2002]).

Finally, we conclude that the sentence is not unduly harsh or severe. Present — Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.

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Bluebook (online)

107 A.D.3d 1591, 966 N.Y.S.2d 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mciver-nyappdiv-2013.

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