Opinion
January 17, 1985
Appeal from the County Court of Ulster County (Vogt, J.).
At about 10:45 P.M. on November 7, 1982, defendant allegedly came to the brightly lighted office of a gasoline service station in the Town of Wawarsing, Ulster County. Defendant then opened the door, entered partially and asked Dawn Di Cairano, the 18-year-old attendant, if there was a bathroom she could use. Defendant returned 10 or 15 minutes later, entered the office and, standing less than two feet away with a knife in her hand, asked Di Cairano if she had any money. Defendant told her to open the cash box beneath a desk, took the money and left the premises. The victim gave the police a complete and detailed description of defendant and her clothing. She was arrested November 30, 1982 and a search of her home pursuant to a search warrant resulted in the seizure of some of the items of clothing worn and the knife used by defendant in the robbery. A jury rejected defendant's alibi defense and found her guilty of robbery in the third degree as charged, giving rise to this appeal.
Defendant's sole argument is prosecutorial misconduct during summation, when, in four instances, the District Attorney allegedly went beyond the bounds of permissible comment (see People v. Ashwal, 39 N.Y.2d 105). First, it was stated that the prosecution "can also establish the motive to commit the crime. [Defendant] had no money on the evening of November 7th". The trial court sustained an objection dissipating any prejudice. Second, the prosecutor commented on the failure of the police to obtain fingerprints, stating that it was impossible. These remarks were clearly fair comment and response in kind to those made in the first instance by defense counsel in his summation ( People v. Patterson, 83 A.D.2d 691).
Defendant next contends that the prosecutor's comment that the victim gave a "vivid description" of defendant to the police was impermissible because there was no testimony to such effect in the record, either by the victim or anyone else. We disagree. The victim testified that she stood side by side less than two feet from defendant and testified "I was just concentrating on things I could tell the police, what she was wearing, and things, and what she looked like". She was able to accurately give police the colors of defendant's clothing and her facial features. In this light, the prosecutor's remarks were within bounds. We further note that the remarks about the victim having taken a mental photograph which she saw over and over in her mind, while perhaps more picturesque than anything else, cannot be said to warrant a new trial. Finally, defendant urges that the prosecutor's characterization of the defense counsel as throwing up a smokescreen when his client was caught redhanded was so inflammatory and prejudicial as to require reversal. We disagree and do not find that the conduct of the prosecutor during summation was so egregious as to deny defendant her constitutional right to a fair trial, nor rose to the level of misconduct requiring reversal and a new trial (see People v Patterson, 88 A.D.2d 694, 695, affd 59 N.Y.2d 794).
Judgment affirmed. Main, J.P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.