People v. DeRosa

Feb 8, 1988
Versions:137 A.D.2d 612
524 N.Y.S.2d 502
1988 N.Y. App. Div. LEXIS 1019

by the defendant from a judgment of the Supreme Court, Queens County (Groh, J.), rendered June 26, 1986, convicting him of robbery in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was denied a fair trial by virtue of several improper comments made by the prosecutor during summation. While the prosecutor’s comment made during his summation with regard to the defendant’s postarrest silence may have been improper, any error which occurred must be deemed harmless in this case where the defendant’s silence was mentioned only in a single, isolated comment, the defendant’s objection to the comment was sustained by the trial court, and the evidence of the defendant’s guilt was overwhelming (see, People v Reed, 120 AD2d 552; People v Mayrant, 109 AD2d 850; People v Boylan, 98 AD2d 779). With respect to the defendant’s other claim of summation error, we note that this claim has not been preserved for appellate review since the prosecutor’s comment was not objected to at trial (see, CPL 470.05 [2]; People v Nuccie, 57 NY2d 818; People v Willis, 107 AD2d 830), and, under the circumstances of this case, review in the interest of justice is not warranted.

*613We have reviewed the sentence imposed and find it to be fair and appropriate under the circumstances (see, People v Suitte, 90 AD2d 80). Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.