Opinion
2011-10-11
The PEOPLE of the State of New York, Respondent,v.Harry SMITH, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered January 25, 2010, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 9 years, unanimously affirmed.
The court properly exercised its discretion when it denied defendant's mistrial motion. In that motion, defendant asserted that portions of the prosecutor's summation shifted the burden of proof. However, in each instance the court had sustained defendant's objection and struck the allegedly offending remark. The court's curative actions were sufficient to prevent any prejudice ( see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ). In any event, when viewed in context, the challenged remarks were fair responses to defendant's summation,
and they did not shift the burden of proof.
Defendant's remaining challenges to the summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
We perceive no basis for reducing the sentence.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ABDUS–SALAAM, JJ., concur.