People v. Malave

May 3, 2004
Versions:7 A.D.3d 542
775 N.Y.S.2d 588

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 22, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of a fair trial as a result of the prosecutor’s summation is unpreserved for appellate review. He either did not object to the remarks at issue, made only general one-word objections, or his objections were sustained without any further request for curative instructions (see CPL 470.05 [2]; People v Heide, 84 NY2d 943, 944 [1994]; People v Tevaha, 84 NY2d 879, 881 [1994]; People v Medina, 53 NY2d 951, 953 [1981]). Moreover, the defendant’s motion for a mistrial, made after the completion of summations, was untimely and failed to preserve his contentions (see People v Morris, 148 AD2d 552 [1989]; People v Bruen, 136 AD2d 648, 649 [1988]).

In any event, the defendant’s contentions are without merit. The prosecutor’s summation can be evaluated fairly only in comparison to that of the defense (see People v Halm, 81 NY2d 819, 821 [1993]; People v McHarris, 297 AD2d 824, 825 [2002]). Analyzed in this context, the prosecutor’s summation constituted a fair response to the defendant’s closing argument which explicitly put his credibility at issue (see People v Allien, 302 AD2d 468, 469 [2003]; People v Lowery, 281 AD2d 491, 492 [2001]; People v Sinclair, 231 AD2d 926 [1996]; People v Russo, 201 AD2d 512, 513 [1994], affd 85 NY2d 872 [1995]). In addition, the prosecutor did not assert an unduly prejudicial “safe streets” argument (People v Tolliver, 267 AD2d 1007, 1008 [1999]; see People v Durecot, 224 AD2d 264, 265 [1996]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Prudenti, P.J., Ritter, Luciano and Crane, JJ., concur.