Opinion
Argued March 27, 2000.
May 8, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered November 2, 1998, convicting her of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (DeNice Powell of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the defendant's conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's claim that she was unfairly prejudiced by several remarks made by the prosecutor during summation is unpreserved for appellate review since she never objected to them at trial (see, CPL 470.05; People v. Medina, 53 N.Y.2d 951; People v. Udzinski, 146 A.D.2d 245, 250; People v. Okon, 184 A.D.2d 664). In any event, the prosecutor's summation remarks did not exceed the broad bounds of rhetorical comment and can be characterized as fair response to the defense counsel's summation and an accurate reflection of the trial testimony (see, People v. Galloway, 54 N.Y.2d 396; People v. Harris, 209 A.D.2d 432).
The defendant correctly contends that her conviction of assault in the second degree (see, Penal Law § 120.05) must be vacated since that offense is an inclusory concurrent count of the crime of robbery in the first degree, of which the defendant also was convicted (see, People v. Ross, 246 A.D.2d 561).
The defendant's remaining contentions are without merit.
BRACKEN, J.P., SULLIVAN, ALTMAN and KRAUSMAN, JJ., concur.