People v Ely

People v Ely 2007 NY Slip Op 09322 [45 AD3d 466] November 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
Lance Ely, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Bonnie C. Brennan of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Philip M. Grella, J.), rendered November 17, 2003, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion, made on the ground that a portion of the prosecutor's summation shifted the burden of proof. The remarks in question were responsive to defendant's summation and did not mislead the jury as to the appropriate burden of proof. As to defendant's remaining summation claims, and his related evidentiary argument, there was nothing in the prosecutor's conduct that was so egregious as to warrant reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant's constitutional challenge to the procedure under which he was adjudicated a persistent violent felony offender is without merit (see Almendarez-Torres v United States, 523 US 224 [1998]). We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Friedman, Sullivan, Gonzalez and Catterson, JJ.