People v Zabala

People v Zabala 2009 NY Slip Op 00438 [58 AD3d 554] January 27, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 11, 2009

The People of the State of New York, Respondent,
v
Eddie Zabala, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered October 2, 2007, convicting defendant, after a jury trial, of attempted assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a persistent felony offender, to an aggregate term of 20 years to life, unanimously modified, on the law, to the extent of amending the sentence and commitment sheet to reflect that defendant was sentenced as a persistent felony offender rather than as a persistent violent felony offender, and otherwise affirmed.

By failing to object, by making only generalized objections, and by failing to request further relief after the court took curative action, defendant has failed to preserve his present challenges to the People's cross-examination and summation, 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]). With regard to the challenged portion of the cross-examination of defendant, the court took actions that were sufficient to prevent any prejudice. As for the summation, the remarks at issue were generally fair comment on the evidence, and any improprieties did not rise to the level of depriving defendant of a fair trial.

Defendant's sentencing as a persistent felony offender was constitutional (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]; People v Graham, 48 AD3d 265 [2008], lv denied 10 NY3d 959 [2008]).

The People concede that the sentence and commitment sheet should be amended to the [*2]extent indicated in order to correct the clerical error stating that defendant was sentenced as a persistent violent felony offender. Concur—Saxe, J.P., Gonzalez, Sweeny, Renwick and DeGrasse, JJ.