Opinion
Motion (387/21) KA 19-00346
04-22-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHRISTOPHER TUCKER, DEFENDANT-APPELLANT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
Motion for reargument be and the same hereby is granted to the extent that, upon reargument, the memorandum and order entered June 17, 2021 (195 A.D.3d 1547 [4th Dept 2021]) is amended by deleting the seventh sentence of the fourth paragraph of the memorandum, and by deleting the fifth sentence of the fourth paragraph of the memorandum and substituting the following sentence in place of the fifth sentence of that paragraph:
Similarly, even assuming, arguendo, that the prosecutor made any arguments during summation that constituted a comment on defendant's prearrest silence (cf. People v Clark, 37 A.D.3d 487, 489 [2d Dept 2007], lv denied 9 N.Y.3d 841 [2007]), we conclude that, viewing the prosecutor's "summation as a whole, those comments 'were not so pervasive or egregious as to deprive defendant of a fair trial'" (People v Elmore, 175 A.D.3d 1003, 1005 [4th Dept 2019], lv denied 34 N.Y.3d 1158 [2020]; see People v Babb, 186 A.D.3d 1058, 1059 [4th Dept 2020], lv denied 36 N.Y.3d 1049 [2021]; People v Forde, 140 A.D.3d 1085, 1086 [2d Dept 2016], lv denied 28 N.Y.3d 929 [2016]).