People v Damon Robertson

People v Robertson 2005 NY Slip Op 09411 [24 AD3d 184] December 8, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent,
v
Damon Robertson, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered December 1, 2003, convicting defendant, after a jury trial, of attempted murder in the second degree (three counts), criminal possession of a weapon in the second and third degrees and perjury in the first degree (four counts), and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed.

The court properly exercised its discretion in permitting the prosecutor to call a witness who had indicated that she would assert a meritless Fifth Amendment privilege and unjustifiably refuse to testify, and the prosecutor's good faith, persistent but unsuccessful attempts to obtain answers did not deprive defendant of a fair trial. It was reasonable for the prosecutor to believe that the witness might abandon her refusal to testify if called to the stand and admonished by the court, and her refusal to testify did not add critical weight to the People's case or otherwise provide them with any unfair advantage (see People v Berg, 59 NY2d 294 [1983]).

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks constituted fair comment on the evidence made in response to defense arguments, and that they did not shift the burden of proof (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Concur—Andrias, J.P., Sullivan, Williams, Gonzalez and Catterson, JJ.