People v. Johnson

177 A.D.2d 711 | N.Y. App. Div. | 1991

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered January 12, 1988, convicting him of assault in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal the defendant contends that certain remarks made by the prosecutor in her opening address and summation deprived him of a fair trial, that his due process rights were violated when the court conducted the charge conference in his absence, and that he was improperly adjudicated a persistent violent felony offender. We disagree.

We find that the defendant’s claims of error with respect to several of the prosecutor’s comments are unpreserved for appellate review (CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953). In any event, we find that the prosecutor’s opening remarks merely presented to the jury the facts she expected to prove at trial and the evidence she planned to introduce (see, People v Williams, 160 AD2d 627; People v Kurtz, 51 NY2d 380, cert denied 451 US 911). Furthermore, the prosecutor’s summation constituted fair comment on the evidence and a fair response to the defendant’s summation (People v Saylor, 115 AD2d 671).

The defendant was not deprived of his due process rights when the court conducted the charge conference in his absence (see, People v Velasco, 77 NY2d 469).

Finally, we find that the defendant was properly adjudicated a persistent violent felony offender. Fiber, J. P., Rosenblatt, O’Brien and Ritter, JJ., concur.