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

734
KA 11-01654
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEREK MCIVER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JAMES R. GARDNER OF
COUNSEL), FOR RESPONDENT.


     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). Viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that the evidence is legally sufficient to establish that
defendant constructively possessed the weapon in question by
exercising dominion and control over the area from which the weapon
was seized (see § 10.00 [8]; People v Gayle, 53 AD3d 857, 859, lv
denied 11 NY3d 832; see generally People v Manini, 79 NY2d 561, 573).

     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, lv denied 17 NY3d 821; see People v Mendez, 80
AD3d 523, 524, lv denied 16 NY3d 861; People v Ruiz, 8 AD3d 831, 832,
lv denied 3 NY3d 711). In any event, the two comments challenged by
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                                                         KA 11-01654

defendant were not so egregious as to deny defendant a fair trial (see
People v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954; People v
Pringle, 71 AD3d 1450, 1451, lv denied 15 NY3d 777; People v White,
291 AD2d 842, 843, lv denied 98 NY2d 656).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
