People v. Witherspoon

Appellate Division of the Supreme Court of New York

People v. Witherspoon

48 A.D.3d 599, 849 N.Y.S.2d 895

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

DecidedFebruary 13, 2008

StatusPublished

Cited by4 cases

This text of 48 A.D.3d 599 (People v. Witherspoon) 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. Witherspoon, 48 A.D.3d 599, 849 N.Y.S.2d 895 (N.Y. Ct. App. 2008).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered September 5, 2006, [600]*600convicting him of operating a motor vehicle while under the influence of alcohol or drugs (two counts), aggravated unlicensed operation of a motor vehicle in the first degree, and driving without a seat belt, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to support his convictions 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 (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).

The defendant’s claim that the Justice who presided at his trial should have recused himself is without merit. Since no basis for disqualification pursuant to Judiciary Law § 14 was presented, it was up to the discretion of the Justice to decide whether or not to recuse himself (see People v Rolle, 37 AD3d 624, 624-625 [2007]; People v Daly, 20 AD3d 542 [2005]). Based upon the record before us, we conclude that the Justice properly declined to recuse himself.

The defendant’s contention that the prosecutor’s summation deprived him of a fair trial is unpreserved for appellate review, as defense counsel only made general, unspecified objections (see CPL 470.05 [2]; People v Romero, 7 NY3d 911 [2006]). In any event, a review of the challenged comments reveals that they were primarily fair comment on the evidence adduced at trial or responsive to defense counsel’s summation (see People v McHarris, 297 AD2d 824 [2002]; People v Cariola, 276 AD2d 800 [2000]). Moreover, even if some of these comments arguably were improper, under the circumstances, the defendant was not denied a fair trial (see People v Vallee, 21 AD3d 502 [2005]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered September 5, 2006, [600]*600convicting him of operating a motor vehicle while under the influence of alcohol or drugs (two counts), aggravated unlicensed operation of a motor vehicle in the first degree, and driving without a seat belt, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to support his convictions 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 (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).

The defendant’s claim that the Justice who presided at his trial should have recused himself is without merit. Since no basis for disqualification pursuant to Judiciary Law § 14 was presented, it was up to the discretion of the Justice to decide whether or not to recuse himself (see People v Rolle, 37 AD3d 624, 624-625 [2007]; People v Daly, 20 AD3d 542 [2005]). Based upon the record before us, we conclude that the Justice properly declined to recuse himself.

The defendant’s contention that the prosecutor’s summation deprived him of a fair trial is unpreserved for appellate review, as defense counsel only made general, unspecified objections (see CPL 470.05 [2]; People v Romero, 7 NY3d 911 [2006]). In any event, a review of the challenged comments reveals that they were primarily fair comment on the evidence adduced at trial or responsive to defense counsel’s summation (see People v McHarris, 297 AD2d 824 [2002]; People v Cariola, 276 AD2d 800 [2000]). Moreover, even if some of these comments arguably were improper, under the circumstances, the defendant was not denied a fair trial (see People v Vallee, 21 AD3d 502 [2005]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur.

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48 A.D.3d 599, 849 N.Y.S.2d 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-witherspoon-nyappdiv-2008.

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