Opinion
1999-10852
Submitted February 22, 2002.
March 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered November 3, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a weapon in the third degree, and criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Dahlia Fredericks of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is affirmed.
The defendant's challenges to various remarks made by the prosecutor during summation are unpreserved for appellate review, as he failed to raise specific objections to the remarks in question (see, CPL 470.05). In any event, the challenged remarks were either responsive to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396), within the bounds of permissible rhetorical comment, or constituted fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105; People v. Russo, 201 A.D.2d 512, 513, affd 85 N.Y.2d 872). Moreover, since the defendant elected to present a defense, the prosecutor's comment alluding to the defendant's failure to call a certain witness on his behalf did not constitute an impermissible effort to shift the burden of proof (see, People v. Tankleff, 84 N.Y.2d 992; People v. Wood, 271 A.D.2d 705; People v. Guillebeaux, 229 A.D.2d 399).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 83).
FLORIO, J.P., S. MILLER, McGINITY and ADAMS, JJ., concur.