People v Henry McCall

People v McCall 2004 NY Slip Op 09395 [13 AD3d 197] December 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent,
v
Henry McCall, Appellant.

—[*1]

Judgments, Supreme Court, New York County (Bonnie Wittner, J.), rendered December 9, 2002, convicting defendant, after a jury trial, of attempted murder in the second degree (two counts), assault in the first degree and attempted assault in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 22 years, unanimously affirmed.

The court appropriately exercised its discretion in granting the People's motion to consolidate the two indictments pursuant to CPL 200.20 (2) (c) (see People v Lane, 56 NY2d 1, 8-9 [1982]; People v Streitferdt, 169 AD2d 171, 176 [1991], lv denied 78 NY2d 1015 [1991]). There was no material variance in the quantity of proof presented with respect to the two crimes, and proof of each crime was presented separately, and was easily segregable in the minds of the jurors (see People v Ndeye, 159 AD2d 397 [1990], lv denied 76 NY2d 793 [1990]).

The prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motion. Although the prosecutor made several inappropriate comments, the court's curative actions were sufficient to prevent any undue prejudice (see People v Santiago, 52 NY2d 865 [1981]). The remainder of the challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments (see People v Overlee, 236 AD2d 133 [1997], lv [*2]denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Concur—Williams, J.P., Marlow, Gonzalez, Sweeny and Catterson, JJ.