Opinion
2013-09044 Ind. No. 7672/12.
01-27-2016
The PEOPLE, etc., respondent, v. Barry HAMILTON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky, and Anthony W. Mariano [Davis Polk & Wardwell LLP] of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky, and Anthony W. Mariano [Davis Polk & Wardwell LLP] of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered August 26, 2013, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the prosecutor's comments during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.052 ). In any event, most of the prosecutor's comments were not improper, since they constituted fair response to the defendant's attack on the credibility of the People's witnesses, or were within the bounds of appropriate argument based on the evidence (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Arroyo, 125 A.D.3d 987, 988, 3 N.Y.S.3d 418; People v. Torres, 71 A.D.3d 1063, 1063, 896 N.Y.S.2d 875).
While it may have been improper for the prosecutor to comment during the summation that “there is no dispute that the defendant is the person who perpetrated this crime” (see People v. Adamo, 309 A.D.2d 808, 809, 765 N.Y.S.2d 651), any taint or prejudice would have been ameliorated by the trial court's instructions as to the proper burden of proof, which the jury is presumed to have followed (see e.g. People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710; People v. Overlee, 236 A.D.2d 133, 142, 666 N.Y.S.2d 572).
The defendant's remaining contentions are without merit.
RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.