Opinion
2228, 2229
November 18, 2003.
Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered October 15, 2001, convicting defendant James Otano, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of 6 years, unanimously affirmed. Judgment, same court, and Justice rendered November 13, 2001, convicting defendant Frank Young, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of 5 years, unanimously affirmed.
Ellen V. Endrizzi, for respondent.
Munir Pujara, for defendant-appellant.
Lyssa M. Sampson, for defendant-appellant.
Before: Nardelli, J.P., Tom, Mazzarelli, Marlow, JJ.
The court properly exercised its discretion in denying defendants' mistrial motions made after the prosecutor's summation. The challenged portions of the summation constituted fair comment on the evidence, made within the broad bounds of permissible advocacy (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). The prosecutor properly responded to defendants' attacks on the victim's credibility, and drew reasonable inferences from the evidence that were not unduly speculative. The prosecutor's remarks with respect to the absence of a potential defense witness were responsive to defense arguments as well as being supported by a sufficient foundation (see People v. Tankleff, 84 N.Y.2d 992, 994-995).
Defendant Otano's claims with respect to the prosecutor's cross-examination are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the cross — examination of Otano were permissible.
We perceive no basis for reducing the sentences.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.