People v. Horne

Apr 12, 2004
Versions:6 A.D.3d 549
774 N.Y.S.2d 401

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, J.), rendered June 14, 2001, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the prosecutor made improper statements during summation is without merit. The remarks in question were fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]), fair response to comments made by defense counsel during summation (see People v Galloway, 54 NY2d 396 [1981]; People v Ingram, 205 AD2d 801 [1994]; People v Ocasio, 180 AD2d 765 [1992]; People v Rivera, *550171 AD2d 583 [1991]; People v Colon, 122 AD2d 151 [1986]), or harmless in light of the overwhelming evidence of the defendant’s guilt and the court’s subsequent instructions, which served to cure any prejudice to the defendant (see People v Crimmins, 36 NY2d 230 [1975]; People v Harrell, 270 AD2d 358 [2000] ; People v Simms, 222 AD2d 622 [1995]; People v Ferrara, 220 AD2d 612 [1995]; People v Weaver, 183 AD2d 797, 798 [1992]).

The defendant’s contention that his adjudication as a persistent violent felony offender violated his right to a jury trial pursuant to Apprendi v New Jersey (530 US 466 [2000]) is without merit (see People v Hyatt, 2 AD3d 749 [2003]; People v Rivera, 2 AD3d 543 [2003]; People v Quinones, 2 AD3d 541 [2003]; People v Grigg, 299 AD2d 367 [2002]; People v McKenzie, 298 AD2d 409 [2002]; People v Taylor, 294 AD2d 607 [2002].

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review, waived, or without merit. Altman, J.P., Florio, Smith and Rivera, JJ., concur.