People v. Reyes

May 29, 1997
Versions:239 A.D.2d 306
658 N.Y.S.2d 854
1997 N.Y. App. Div. LEXIS 5720

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered January 4, 1995, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a prison term of 8 months, unanimously affirmed.

The verdict was based on legally sufficient evidence. There was ample evidence that the victim was beaten by three persons, clearly acting in concert (see, Matter of Juan J., 81 NY2d 739), and defendant was sufficiently identified as one of the three persons.

Since defendant raised no objection to the adequacy of the curative relief provided by the court in each instance, his claims that the prosecutor’s summation attempted to shift the burden of proof and improperly commented on defendant’s failure to testify, in distinction to his codefendant, are unpreserved for appellate review (People v Bojku, 156 AD2d 269, lv denied 75 NY2d 964; People v Medrano, 167 AD2d 282, lv denied 77 NY2d 880), and we decline to review them in the interest of justice. Were we to review them, we would find that the remarks constituted permissible rhetorical comment and a fair response to defendant’s attack on the credibility of the People’s witnesses and could not reasonably be interpreted as an adverse comment on defendant’s failure to take the stand (People v Burke, 72 NY2d 833, 835-836). Concur—Rosenberger, J. P., Ellerin, Rubin, Williams and Andrias, JJ.