Opinion
(1236) KA 98-05488.
November 9, 2001.
(Appeal from Judgment of Erie County Court, Drury, J. — Robbery, 2nd Degree.)
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10 [a]). Contrary to defendant's contention, the evidence of physical injury is legally sufficient to support the conviction ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Wiggins, 265 A.D.2d 905, 905-906, lv denied 94 N.Y.2d 908). The verdict is not against the weight of the evidence ( see, People v. Bleakley, supra, at 495).
Contrary to the further contention of defendant, he was not denied a fair trial by prosecutorial misconduct during summation. With respect to the single instance of alleged misconduct that is preserved for our review, the curative instruction given by County Court alleviated any possible prejudice to defendant ( see, People v. Spina, 275 A.D.2d 902, 903, lv denied 95 N.Y.2d 969). With respect to the unpreserved incidents of misconduct, we agree with defendant that the prosecutor made an inappropriate "safe streets" comment ( see, People v. Tolliver, 267 A.D.2d 1007, 1008, lv denied 94 N.Y.2d 908) and improperly vouched for the credibility of the victim. We conclude, however, that the prosecutor's misconduct was not so egregious as to deprive defendant of a fair trial ( see, People v. Plant, 138 A.D.2d 968, lv denied 71 N.Y.2d 1031). The sentence is neither unduly harsh nor severe.