People v. Johnson

Apr 29, 2015
2012-07189
Versions:127 A.D.3d 1234
5 N.Y.S.3d 902
2015 NY Slip Op 03565

Ordered that the judgment is affirmed.

The defendant‘s contention that certain comments made by the prosecutor during her summation were improper and denied him a fair trial is unpreserved for appellate review since he either failed to object to the comments he now challenges, made only a general objection, objected on grounds other than those currently raised, or failed to request additional instructions when the court gave curative instructions, and did not move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05 [2]; People v Joubert, 125 AD3d 686 [2015]; People v Wallace, 123 AD3d 1151 [2014]; People v Jorgensen, 113 AD3d 793, 794-795 [2014]). In any event, the challenged remarks were fair comment on the evidence, fair response to the defense summation (see People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]), or were not so flagrant or pervasive as to deny the defendant a fair trial (see People v Thompson, 125 AD3d 899 [2015]; People v Joubert, 125 AD3d 686 [2015]). To the extent that any prejudicial effect may have resulted from the challenged remarks, it was ameliorated by the court‘s instructions (see People v Galloway, 54 NY2d at 399; People v Safian, 46 NY2d 181, 190 [1978]; People v Jorgensen, 113 AD3d at 794-795). Defense counsel‘s failure to object to the subject comments did not constitute ineffective assistance of counsel (see People v Ennis, 11 NY3d 403, 415 [2008]; People v Stultz, 2 NY3d 277, 287 [2004]; People v Wallace, 123 AD3d 1151 [2014]; People v Rahman, 119 AD3d 820, 821 [2014]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83 [1982]). Eng, P.J., Leventhal, Hall and Roman, JJ., concur.