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

315
KA 11-02125
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD WALKER, ALSO KNOWN AS SHORTY,
DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE ABBATOY LAW FIRM, PLLC,
ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered March 11, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance 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 criminal sale of a controlled substance in the third degree
(Penal Law § 220.39 [1]), defendant contends that he was deprived of a
fair trial by instances of prosecutorial misconduct during, inter
alia, the prosecutor’s cross-examination of him. Initially, we note
that only some of the instances raised on appeal are preserved for our
review, and we decline to exercise our power to address the
unpreserved instances as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). With respect to those contentions
that are preserved for our review, we note that, “where, as here, the
defendant’s testimony leaves open only the suggestion that the
People’s witnesses have lied . . . , the prosecution has the right to
[cross-examine defendant on the issue] whether the witnesses are
liars” (People v Overlee, 236 AD2d 133, 139, lv denied 91 NY2d 976;
see People v Allen, 13 AD3d 892, 897-898, lv denied 4 NY3d 883; see
also People v Morris, 267 AD2d 1032, 1033, lv denied 95 NY2d 800). In
any event, we conclude that defendant was not thereby denied a fair
trial (see People v Shinebarger, 110 AD3d 1478, 1480; People v
Gonzalez, 206 AD2d 946, 947, lv denied 84 NY2d 867).

     Contrary to defendant’s further contention, the prosecutor did
not engage in prosecutorial misconduct on summation by vouching for
                                 -2-                           315
                                                         KA 11-02125

the credibility of the informant, and, in any event, the instances of
alleged prosecutorial misconduct on summation of which defendant
complains were “ ‘either a fair response to defense counsel’s
summation or fair comment on the evidence’ ” (People v Green, 60 AD3d
1320, 1322, lv denied 12 NY3d 915; see People v Halm, 81 NY2d 819,
821). Furthermore, even assuming, arguendo, that the burden of proof
was impermissibly shifted by other comments made by the prosecutor
during summation (see People v Grant, 94 AD3d 1139, 1141, lv denied 20
NY3d 1099), we conclude that the comments were not so pervasive or
egregious as to deny defendant a fair trial (see People v Rogers, 103
AD3d 1150, 1153-1154, lv denied 21 NY3d 946).

     Defendant further contends that the verdict is contrary to the
weight of the evidence in light of his acquittal of the first four
counts of the indictment charging him with other sales of controlled
substances on other days, and in light of the jury’s apparent
acceptance of his agency defense with respect to those counts. We
reject that contention. Generally, “[w]e accord great deference to
the resolution of credibility issues by the trier of fact ‘because
those who see and hear the witnesses can assess their credibility and
reliability in a manner that is far superior to that of reviewing
judges who must rely on the printed record’ ” (People v Ange, 37 AD3d
1143, 1144, lv denied 9 NY3d 839, quoting People v Lane, 7 NY3d 888,
890; see generally People v Bleakley, 69 NY2d 490, 495). Here, the
first four counts of the indictment were based entirely upon the
testimony of a witness who was a paid police informant and an admitted
drug user, and who had personal animus toward defendant, but the fifth
count was also based on the testimony of an undercover sheriff’s
investigator who purchased the drugs at issue. Consequently, viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), after exercising our
factual review power and according deference to the jury’s credibility
determinations, we find that the People disproved the agency defense
beyond a reasonable doubt with respect to the fifth count, of which
defendant was convicted (see People v Foster, 50 AD3d 1559, 1559, lv
denied 10 NY3d 934), and that the verdict is not contrary to the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
