Opinion
KA 00-01260
March 21, 2003.
Appeal from a judgment of Chautauqua County Court (Ward, J.), entered February 7, 2000, convicting defendant after a jury trial of, inter alia, assault in the second degree.
KATHLEEN E. CASEY, MIDDLEPORT, For Defendant-appellant.
JAMES P. SUBJACK, District Attorney, MAYVILLE (TRACEY A. BRUNECZ Of Counsel), For Plaintiff-respondent.
PRESENT: PINE, J.P., SCUDDER, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of, inter alia, assault in the second degree (Penal Law § 120.05). We reject the contention of defendant that the prosecutor's remarks during summation denied him a fair trial. The remarks with respect to the electrical cord that defendant used to strike the victim were fair comment on defense counsel's summation (see People v. O'Donnell, 295 A.D.2d 936, 937, lv denied 98 N.Y.2d 770) and the fact that the prosecutor struck the table with the electrical cord did not have "'a decided tendency to prejudice the jury'" (People v. Halm, 81 N.Y.2d 819, 821). Any prejudice with respect to the prosecutor's remark that defendant had a firearm in his pickup truck was alleviated by County Court's curative instruction (cf. People v. Calabria, 94 N.Y.2d 519, 523). The sentence is neither unduly harsh nor severe.