People v Rafael Martinez

People v Martinez 2004 NY Slip Op 02133 [5 AD3d 278] March 23, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

The People of the State of New York, Respondent,
v
Rafael Martinez, Appellant.

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Judgment, Supreme Court, New York County (Felice Shea, J.), rendered July 2, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to an aggregate term of 7½ to 15 years, unanimously affirmed.

The challenged portions of the People's summation generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and the summation did not deprive defendant of a fair trial (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]). The People were entitled to comment on the credibility of defendant's testimony and on the lack of evidentiary support for his claims. To the extent that the summation contained any improprieties, the court's curative actions, along with its final jury instructions, prevented any prejudice. The court clearly instructed the jury that the burden of proof remained on the People and did not shift to defendant. Concur—Tom, J.P., Andrias, Ellerin and Gonzalez, JJ.