Opinion
September 19, 1991
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
The uncontradicted testimony of complainants indicated that defendant and co-defendant entered complainants' apartment, tied up and threatened the occupants with guns and ransacked the dwelling. The complainants were able to overpower the perpetrators, who were arrested when the police arrived.
During his summation at trial, the prosecutor told the jury that "it's just disgusting," referring to the defendants' actions. Defense counsel objected to this remark. The trial court ordered the word "disgusting" stricken from the record. The prosecutor stated that all the complainants want "is justice". The court overruled the objection to this comment. Defense counsel moved for a mistrial based on the prosecutor's allegedly emotional remarks to the jury. The motion was denied. The court instructed the jury that sympathy should play no part in their deliberations and that any matter stricken from the record should be totally disregarded.
The prosecutor's call for "justice" to be done was clearly permissible. (See, People v. Galloway, 54 N.Y.2d 396, 401.) As for the stricken remark, any prejudice was dissipated by the trial court's prompt and clear advisory to the jury, which the defense did not object to, that the comment was improper and must be disregarded. (People v. Wood, 66 N.Y.2d 374, 381.)
In any event, any error in the prosecutor's remarks was harmless because there is little chance that it had any effect on the jury's decision, given the overwhelming and undisputed evidence of defendant's guilt. (People v. Crimmins, 36 N.Y.2d 230, 242.)
Concur — Murphy, P.J., Ross, Asch, Kassal and Smith, JJ.