Opinion
June 28, 1990
Appeal from the Supreme Court, New York County, Harold Rothwax, J.
On Thanksgiving day, 1987, a New York City Assistant District Attorney (ADA) watched as defendant dropped and retrieved a handgun while riding a Manhattan-bound subway train. After the train arrived in the Times Square station, the ADA summoned a Transit Authority police officer who radioed for help. Within minutes, defendant was searched and arrested for possession of an unlicensed handgun.
On appeal, defendant contends that the prosecutor vouched for his witnesses by stating that they had no reason to lie. He further argues that the sentence imposed by the court was unduly harsh considering defendant's efforts to rehabilitate himself.
Defendant's contentions are without merit. It is the right of counsel during summation "`to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide'" (People v. Ashwal, 39 N.Y.2d 105, 109; see, People v. Colon, 122 A.D.2d 150). Defendant first raised the issue of credibility at summation by stating that the ADA's testimony was not honest and that the ADA and the police were trying to frame him. Defense counsel pointed out inconsistencies in the testimony of the arresting officer and questioned the procedures followed in making the arrest. In response to these claims, the prosecutor commented upon the witnesses' credibility.
The prosecution is permitted to respond to such remarks by the defense, and the prosecutor's comments were proper responses to defendant's summation (People v. York, 133 A.D.2d 130, 133, lv denied 70 N.Y.2d 939). Additionally, of the remarks complained of, only one was preserved for appellate review by the raising of an objection at trial (People v. Medina, 53 N.Y.2d 951).
As to the appropriateness of sentence, defendant, as a persistent felony offender convicted of a class D felony, faced a minimum sentence ranging from 6 to 25 years and a maximum sentence of life imprisonment. The sentence imposed by the Trial Justice was in the lower end of this range (People v. Farrar, 52 N.Y.2d 302, 305-306; People v. Junco, 43 A.D.2d 266, 268, affd 35 N.Y.2d 419, cert denied 421 U.S. 951), and there is no basis upon which to disturb the exercise of the court's discretion.
Concur — Murphy, P.J., Kassal, Ellerin, Smith and Rubin, JJ.