People v Smith

People v Smith 2011 NY Slip Op 07137 Decided on October 11, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 11, 2011
Mazzarelli, J.P., Friedman, Catterson, Moskowitz, Abdus-Salaam, JJ.
5670 310/09

[*1]The People of the State of New York, Respondent,

v

Harry Smith, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Lisa A. Packard of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Caleb
Kruckenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered January 25, 2010, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 9 years, unanimously affirmed.

The court properly exercised its discretion when it denied defendant's mistrial motion. In that motion, defendant asserted that portions of the prosecutor's summation shifted the burden of proof. However, in each instance the court had sustained defendant's objection and struck the allegedly offending remark. The court's curative actions were sufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981]). In any event, when viewed in context, the challenged remarks were fair responses to defendant's summation, and they did not shift the burden of proof.

Defendant's remaining challenges to the summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for 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]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2011

CLERK