Opinion
MOTION NO. (387/21) KA 19-00346
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Christopher TUCKER, Defendant-Appellant.
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, 150 N.Y.S.3d 443 [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, 829 N.Y.S.2d 201 [2d Dept. 2007], lv denied 9 N.Y.3d 841, 840 N.Y.S.2d 768, 872 N.E.2d 881 [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, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] ; see People v. Babb , 186 A.D.3d 1058, 1059, 129 N.Y.S.3d 590 [4th Dept. 2020], lv denied 36 N.Y.3d 1049, 140 N.Y.S.3d 865, 164 N.E.3d 952 [2021] ; People v. Forde , 140 A.D.3d 1085, 1086, 34 N.Y.S.3d 477 [2d Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ).