Opinion
2014-02-26
The PEOPLE, etc., respondent, v. Marvin ALLEN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Joanna Elm, and Adam Koelsch of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Joanna Elm, and Adam Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered October 18, 2011, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court, upon affording the parties an opportunity to be heard on the matter, did not improvidently exercise its discretion in permitting the jurors to take the subject gun into the deliberation room ( seeCPL 310.20[1]; People v. Ziminski, 34 A.D.3d 507, 823 N.Y.S.2d 519). The defendant failed to establish that the jury conducted an experiment, let alone an experiment not within the ken of everyday experience and knowledge concerning a material issue in the case ( see People v. Sturdivant, 6 A.D.3d 733, 775 N.Y.S.2d 535).
The defendant's contention that certain remarks made by the prosecutor during summation constituted reversible error is unpreserved for appellate review. Defense counsel either did not object to the remarks at issue or made only a general one-word objection, and his motion for a mistrial, made after the completion of summations, was untimely ( see People v. Read, 97 A.D.3d 702, 947 N.Y.S.2d 614;People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588). In any event, the contention is without merit. The remarks either were responsive to the defense's summation, were permissible rhetorical comment, constituted fair comment on the evidence or the reasonable inferences to be drawn therefrom, or otherwise do not warrant reversal ( see generally People v. Halm, 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Wright, 110 A.D.3d 836, 972 N.Y.S.2d 660,lv. denied22 N.Y.3d 1045, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013];Matter of State of New York v. Colvin M., 110 A.D.3d 818, 973 N.Y.S.2d 664;Matter of State of New York v. Carmelo M., 110 A.D.3d 818, 971 N.Y.S.2d 896,lv. denied 22 N.Y.3d 859, 2014 N.Y. Slip Op. 60349, 2014 WL 112607 [2014] ). MASTRO, J.P., DICKERSON, LOTT and HINDS–RADIX, JJ., concur.