        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1395
KA 11-01664
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN L. LOVE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 8, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree and rape
in the third 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 rape in the first degree (Penal Law § 130.35 [1]), and rape
in the third degree (§ 130.25 [2]), defendant contends that County
Court erred in admitting in evidence the recording of the victim’s
call to 911 as an excited utterance (see generally People v Cotto, 92
NY2d 68, 78-79). We reject that contention. The People established
that the victim left defendant’s house, where the incident occurred,
and went directly to a pay phone, and that defendant’s mother was
following the victim in a car. The recording and the victim’s
testimony also established that the victim initially believed that
defendant was in that car, and the recording confirms that she was
frantically asking the dispatcher to send help before defendant could
reach her. We conclude that the court properly reviewed the facts of
the case and considered the atmosphere surrounding the statements in
making its determination (see People v Mulligan, 118 AD3d 1372, 1373,
lv denied 25 NY3d 1075), and we agree with the court that the victim’s
statements on the 911 recording are “the product of the declarant’s
exposure to a startling or upsetting event that is sufficiently
powerful to render the observer’s normal reflective processes
inoperative” (People v Vasquez, 88 NY2d 561, 574).

     Contrary to defendant’s further contention, the verdict is not
against the weight of the evidence. Viewing the evidence in light of
the elements of the crimes as charged to the jury (see People v
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                                                         KA 11-01664

Danielson, 9 NY3d 342, 349), we conclude that, although a different
verdict would not have been unreasonable, the jury did not fail to
give the evidence the weight it should be accorded (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to object to comments that the prosecutor made
during opening statements and on summation, and thus he failed to
preserve for our review his contention that such comments constituted
prosecutorial misconduct that deprived him of a fair trial (see CPL
470.05 [2]; People v Cullen, 110 AD3d 1474, 1475, affd 24 NY3d 1014).
In any event, the prosecutor’s summation constituted fair response to
defense counsel’s summation, and did not exceed “the broad bounds of
rhetorical comment permissible in closing argument” (People v
Galloway, 54 NY2d 396, 399; see People v Williams, 28 AD3d 1059, 1061,
affd 8 NY3d 854; People v Ward, 107 AD3d 1605, 1606, lv denied 21 NY3d
1078). Even assuming, arguendo, that the prosecutor’s comments during
opening statements or on summation were improper, we conclude that
they were not so egregious as to deprive defendant of a fair trial
(see People v Figgins, 72 AD3d 1599, 1600, lv denied 15 NY3d 893;
People v Sweney, 55 AD3d 1350, 1351, lv denied 11 NY3d 901).




Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
